Tag Archives: Intersectionality


Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

Wendy B. Scott[1]

Presumed Incompetent: The Intersections of Race and Class for Women in Academia. Edited by Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez and Angela P. Harris. Boulder, CO. University of Colorado Press (2012). 570 pages.

“Presumed incompetent” names a standard imposed on people of color collectively in America. The book so titled demonstrates how this standard operates in the lives of women of color in the academy. The centuries of oppression, brutality, denial, discrimination, and self-effacement combined to establish this presumption based on entrenched images of those with darker skin as inept, [2] unable and therefore unworthy of the respect[3] accorded to those with lighter skin.[4]  Presumed Incompetent chronicles the struggles in which women of color in the academy have engaged, burdened with the presumption, in order to move forward in a world of privilege.  This essay collection is more than a series of anecdotes. The narratives and research establish empirically that being presumed incompetent, before any performance, is not the result of “individual flaws,” but of “larger structural and cultural forces within academia that make the experience . . . far too common” among women of color.[5] Therefore, Presumed Incompetent is required reading for every university president, chancellor, dean, dissertation, and tenure committee that truly wants to undo the presumption of incompetence.

Presumed Incompetent collects stories told primarily by women of color in a multitude of disciplines who have bravely spoken out in personal narratives, supported by a wealth of research, on their experienced or witnessed marginalization and downright mistreatment by colleagues, administrators, and students. I call them brave because the experiences chronicled and sentiments expressed are more often the subject of quiet conversations with kindred spirits than the subject of public discourse.[6] In the end, the authors move us closer to dispelling the presumption with both the content and the quality of the writing, editing, and research.

The editors organized the essays around four major themes: negotiation of identity, the link between the individual and the collective, the nature of academic culture, and mechanisms for change. [7] The themes are addressed in the context of second-generation diversity issues of campus climate; faculty/student relations; networks of alliances; social class in academia; tenure; and promotion. This review begins with a summary of the four themes through which the presumption of incompetence is explored, with emphasis on the negotiation of identity and mechanisms for change. Part I also points to lessons learned from waging the perpetual battle to keep the presumption at bay and offers some critiques of the collection. In Part II, I offer a brief reflection on my own experience with the presumption to further affirm the legitimacy of what the readers of Presumed Incompetent will learn when they study this timely text. Part III concludes with observations on the value of these essays to women interested in or new to the academy.

Full Book Review: Scott, Presumed Incompetent Book Review

Citation: Wendy Scott, Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, 37 Harv. J. L. & Gender Online 1 (2013).

[1] Professor of Law, North Carolina Central University.

[2] No better place is that image embedded than in Hollywood, a shear repository of evidence to document the campaign to paint people of color as less than. Films like Birth of a Nation (1915), Gone with the Wind (1939) and the Tarzan series burned the image of the unintelligent other into the minds of generations of American children and adults. A movie buff, I watched two Bette Davis movies back to back. In each, a dark man played the part of her servant. One was the butler, “Uncle Cato,” in the antebellum film Jezebel (1938) set on a Louisiana Plantation where slaves danced and sang happy songs on her request. The other manservant was an unnamed Asian “Uncle Cato” in The Letter (1940), a film set on a rubber plantation in Singapore. For a thorough examination of the images created in Hollywood of the incompetent “darky,” see DONALD BOGLE, TOMS, COONS, MULATOES, MAMMIES AND BUCKS (4th ed. 2001). In later years the “blaxploitation” and video vixen image competed against the image of the hard working productive Cosby Show Huxtable family image. See KARRINE STEFFANS, CONFESSIONS OF A VIDEO VIXEN (2005); Top 10 Memorable Blackploitation Films, Listverse, http://listverse.com/2011/09/19/top-10-memorable-blaxploitation-films/ (last visited Sep. 2, 2013).

[3] Dred Scott v. Sandford, 60 U.S. 393 (1857) enshrined the unworthiness of African Americans into American law. For an example of the ramifications of such legal doctrine, see Vincene Verdun, If the Shoe Fits Wear It: An Analysis of Reparations to African Americans, 67 Tulane L. Rev. 597 (1992).  Immigration and policies regarding Native Americans were also premised on assumptions of inferiority and incompetence. IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (10THed. 2006); ROBERT WILLIAMS, LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005).

[4] Being white constitutes the ultimate privilege. See Cheryl Harris, Property as Whiteness,­­­ 107 Harv. L. Rev. 1707 (1993) (chronicling the value of whiteness in contrast to being colored). The hierarchy of complexion, or colorism, and hair differences within communities of color has also contributed to the feeling of unworthiness, especially among women.  The effect of colorism is described in the old song by Big Bill Broonzy: “If you was white you’re all right, if you was brown stick around, but if you’s black get back.” See Big Bill Broozy:Black, Brown and White, Youtube, http://www.youtube.com/watch?v=k0c1c0ZsTLA (last visited Sep. 2, 2013). For general treatment of colorism, see, What is Colorism, Mobilizing Around Colorism, http://mobilizingaroundcolorism.weebly.com/what-is-colorism.html (last visited Sep. 2, 2013); What is Colorism, About.com, http://racerelations.about.com/od/understandingrac1/a/What-Is-Colorism.htm (last visited Sep. 2, 2013). For scholarly examinations of the significance of hair and color, see Paulette Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 41 Duke L. J. 397 (1991); Jennifer L. Hochschild, The Skin Color Paradox and the American Racial Order, http://scholar.harvard.edu/jlhochschild/publications/skin-color-paradox-and-american-racial-order (last visited Sep. 2, 2013).

[5] Afshan Jafar, Presumed Incompetent, Inside High er Ed, http://www.insidehighered.com/blogs/university-venus/presumed-incompetent (last visited Aug. 16, 2013) (book review).

[6] Two seminal works that addressed the marginalization of women of color in the academy were published three decades ago. THIS BRIDGE CALLED ME BACK: WRITINGS BY RADICAL WOMEN OF COLOR (Cherrie Mofana & Gloria Anzaldua, ed) (1981); ALL THE WOMEN ARE WHITE, ALL THE MEN ARE BLACK, BUT SOME OF US ARE BRAVE; BLACK WOMEN STUDIES (Gloria T. Hull, Patricia Bell Scott & Barbara Smith) (1982).

[7] The major themes of the book are discussed in the introduction. PRESUMED INCOMPETENT: THE INTERSECTIONS OF RACE AND CLASS FOR WOMEN IN ACADEMIA 1, 1-14 (Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez, Angela P. Harris, eds., 2012) [Hereinafter PRESUMED].


Student Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

By Kate Aizpuru[1]

             We’ve all seen the brochures. Glossy pamphlets advertising sparkling university buildings, rolling green campuses, and laughing students linked arm-in-arm as benevolent faculty look on, smiling. Somehow, college and university brochures always seem to feature students and faculty of color, bedecked with tolerance, diversity, and a cheery demeanor. But something is rotten in the academy. Even as institutions of higher learning trumpet their achievements in diversity, the reality is that for women of color, the academy can be an unwelcoming, unsupportive, and sometimes overtly racist environment in which to work and live. In a masterpiece of frank conversation, convincing discussion, accessible prose, and courage, Presumed Incompetent weaves together the challenges facing women of color in the (literally) ivory tower—while providing future academics with the tools they will need to remain resilient, and allies and universities with strategies for creating a healthier environment. 

             After a short introduction, the book is organized into five sections containing a total of thirty essays: General Campus Climate, Faculty/Student Relationships, Networks of Allies, Social Class in Academia, and Tenure and Promotion. The final chapter, “Lessons from the Experiences of Women of Color Working in Academia,” derives “immediate, concrete, and applicable recommendations that may help circumvent and/or diffuse the conditions described in [the] anthology.”[2] And despite the heartrending—and occasionally hair-raising—stories, as editor Carmen G. Gonzalez writes, “[T]he ultimate lesson of Presumed Incompetent is resilience . . . Our goal as editors was to empower women of color and allies by providing tools and strategies to overcome the challenges described in this volume.”[3]

            Those challenges included both overt and subtle racism, pervasive stereotyping, lack of institutional support, lack of respect from students, misogyny, heteronormativity, class bias, and isolation from home—among others. I was shocked at the flagrant racism that both students and other faculty displayed to the contributors: the black professor who was openly mocked for her natural hair;[4] the black faculty member who reported receiving Ku Klux Klan notes under her door;[5] the Argentinian professor whose student argued that, “You don’t even speak English. How do you know my paper is bad?”[6]; the post-doc who, after her first promising job interview, was told, “Well, I’m just going to be honest with you. You’re going to get this job because you’re black and a woman. So we’re going to give you this job. But we’re going to hire someone else for the job we advertised.”[7]

             Yet the brunt of the narratives did not focus primarily on overtly racist statements, though there were plenty of those to go around. Every essay also shed light on the institutional structures that consistently worked against women of color seeking to advance their academic careers.

             One frequently referenced example was the request that women of color serve on “diversity committees.” Universities, seeking to burnish their diversity credentials, would obviously benefit from having a black, Asian, or Latina women sitting on or chairing a diversity committee. But participation in committees counts for nothing when that professor is being evaluated for tenure. So what is a professor facing the appointment to do? Agree to participate in the committee, in addition to her teaching load and other responsibilities, sacrificing the time she needs for research and publishing? Or refuse, thereby alienating those who will ultimately decide whether her career advances?

             Faculty also reported perceiving that students, who were more accustomed to seeing women of color as maids, cooks, nannies and in other subservient roles than in positions of power, simply did not view their professors as credible. Indeed, “research shows that both minorities and women are presumed to be incompetent as soon as they walk in the door.”[8] When the students challenged the professor over a grade or some other issue, universities frequently sided with the student or chose to remain neutral—thereby further undermining the authority of the women of color faculty.[9] White students resented being taught race and gender issues by women of color, whom they perceived as, at best, unable to teach the material objectively, or at worst, inflicting “reverse racism” on the classroom.[10] White professors, particularly cis-men, on the other hand, were typically viewed as capable of presenting any material without a particular political agenda.[11] Meanwhile, faculty also reported rejection by their communities of origin[12] or by students of color.[13]

             Racial and gender stereotypes seemed to follow many contributors into the academy, shaping institutional expectations. Although the white media has excoriated Paula Deen for her racist comments, Angela Mae Kupenda’s essay makes clear that racist nostalgia is not limited to aging bigots: “[B]lack female academics are asked, or required, to focus on presenting a comforting appearance for whites who miss the blacks of the ‘ole South’ . . . . In the slavery—and even in the postslavery—South, for example, black women were required to place the needs of the white families they worked for over those of their own children. Unfortunately today, black women in the South still face these ghosts. When we try to ignore their ghoulish calling, we may be punished for allegedly lacking collegiality or harboring irrational anger.”[14] Professor Kupenda described how, after she turned down an offer to run a program for entering students who needed some extra help, her white academic dean replied: “We need you to teach in the summer program because you are black, you are a woman, you are a great teacher, and you nurture, mother, feed, and nurse all the students.”[15] In disbelief, Kupenda responded, “You just described a mammy . . . . I guess I will have to be a mammy for you nine months a year, but . . . three months a year I must try to be a scholar.”[16] Years later, Kupenda continued to feel as though she had been complicit in her own oppression: “I had become a mammylike, fully accessible stereotype to make the white students more comfortable.”[17] Black woman professors like Kupenda are in a double-bind, because studies have confirmed that “likeability and warmth are key elements for women professors to get good student evaluations,”[18] and for professors of color this often means taking extra steps to put white students at ease.[19]

             As the chapters progress, the essays begin to focus more on strategies and tools for creating a healthier environment—not just for women of color in the academy, but also for the administrators who will be managing them and their white and/or male colleagues. While acknowledging that for many faculty of color the task of sustaining oneself can seem an uphill climb,[20] the consensus appears to be that, with work, the academy can be as supportive and welcoming for women of color as it is for white men.

             Many of the essays shared the tools that contributors had, themselves, employed to sustain themselves while navigating treacherous territory. Community, solidarity, and the creation of safe spaces stood out as prominent themes.[21] Relatedly, mentorship was identified as “critical for graduate students and faculty of color in white-dominated departments and disciplines.”[22] Collectives provide a space to discuss challenges and openly speak the truth about institutions, as well as create the opportunity for unified strength and advocacy.[23] As Võ writes, “anxiety is reduced if you have supportive colleagues who protect you from burdensome committee work, present you with suitable teaching assignments, and genuinely support your research agenda,” and, “[a] good mentor can help you navigate the political landmines.”[24]

             Other essays provided concrete career advice for women of color and their allies in the academy. Holling, Fu and Bubar provided specific tips for women of color contemplating joint appointments.[25] Chang described the process of developing a women of color studies curriculum that is “intersectional, that looks at the experiences of women of color living within the structures of these systems of oppression and views them as inextricably linked,” aiming to “bring research to the service of communities being studied, rather than the reverse.”[26] Spade explains how classroom agreements, like “move up/move back,” “collaboration not competition,” “constructive feedback,” and using preferred pronouns and correct pronunciations of names can go a long way to creating a safe space in the classroom.[27] Other essays discussed issues like salary and benefit negotiations, institutional politics, tenure, promotion, and work/life balance.

             In addition to the wisdom aimed at aspiring academics, several of the chapters provided guidance for administrators and department heads. Võ calls on institutions of higher education to “consider a holistic approach to hiring, retaining, and promoting diverse faculty,” pointing out that “creating equitable policies, along with transforming a hostile workplace culture, benefits all faculty.”[28] Lazos draws on research about race, gender and student evaluations to determine that “academia needs to make systemic changes to account for the factors that systemically negatively impact both women and minority professors,” and suggests looking into different ways of evaluating teaching performance.[29] In the final chapter, among other suggestions, Flores recommends that administrators “be color conscious, not color-blind”; develop an action—and outcome—based diversity plan focusing on underrepresented group members; not define white women as the de facto norm for all women by using the phrase “women and people of color” or “women and minorities”; avoid knee-jerk reactions to accusations of racism; and mandate and implement meaningful sexual harassment policies.[30] She also advises administrators on how to deal with student/faculty issues, noting, for example, that “[w]hen women of color teach topics related to social justice . . . some, if not most white students will meet their message with resentment,” and that “lesbian, bisexual, transgender and transsexual women of color are particularly vulnerable to student violence and harassment.”[31]

             Presumed Incompetent is, first and foremost, a book by and for women of color who are in the academy or aspiring to enter academia. Editor Carmen Gonzalez writes, “I wanted students who might become law professors (or professors in other disciplines) to be forewarned and fore-armed.”[32] Nonetheless, it is also a book for white people and men in academia. Gonzalez continues, “The goal is to share strategies that can be used by women of color, by allies, and by academic leaders to ensure that underrepresented groups succeed in the academic workplace and to disrupt dysfunctional hierarchies.”[33] The collection triumphantly achieves that goal.

             When I first agreed to write this review, I felt uncomfortable writing about a book that I perceived as aimed at women of color. After all, as a white woman, I can relate to some of the challenges facing women in higher education, but I also enjoy the various well-documented privileges of white skin, upper-middle-class background, and Swarthmore and (forthcoming) Harvard degrees. Nevertheless, I quickly realized that Presumed Incompetent is a book for everyone who is interested in social justice and fighting structures of oppression. Some of the passages that were the most important for my own reading experience dealt with the failures of white, straight cis-gender women to be good allies.[34] Whether it was the surprise that a white woman would bring up race because “it was unusual for white women to raise the topic of racial justice”;[35] the failure of white women to support faculty of color in issues of racial oppression;[36] or even the thoughtless assumption that, “due to my own unexamined race and class privileges . . . that I could critique social conventions, wear and study whatever I wanted, and still be respected and promoted by senior white male faculty,”[37] I saw myself and my own failures—the misunderstandings and microaggressions—reflected in the text. It is my intention that, having read Presumed Incompetent and absorbed its lessons and strategies, I can work to become a better ally in the future.

             Presumed Incompetent is a historic work for a number of reasons, not least for its frank, honest discussion of race and gender in the workplace. Moreover, it documents the lived experiences of women who have struggled, survived, and thrived in often unfriendly and unwelcoming environments—“ensur[ing] that even those women who survived and soared realize that they are part of a greater phenomenon that relates more to power and gender relations than their particular stories,” and situating their work as “clearly central to the academy of the twenty-first century.”[38] At times heartbreaking, at times hopeful, and always powerful, Presumed Incompetent is a must-read for academics, for those whose friends and loved ones are scholars, and for students of social justice anywhere.


Presumed Incompetent: The Intersections of Race and Class for Women in Academia, edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carman G. González and Angela P. Harris, is available from the University Press of Colorado. For more information, visit their website: http://www.usu.edu/usupress/books/index.cfm?isbn=8695.



[1] J.D., Harvard Law School, 2014. Thanks to Christine Stott and the staff of the Harvard Journal of Law and Gender for their help on this piece. Thanks to the editors and contributors of this incredible volume for speaking truth to power.


[2] Yolanda Flores Niemann, Lessons from the Experiences of Women of Color Working in Academia, in Presumed Incompetent 446, 447 (Gabriella Gutiérrez y Muhs, et al., 2012).


[3] Gwendolyn, The Academic Feminist: Women of Color, Racism and Resilience in Academia, Feministing, http://feministing.com/2013/05/13/the-academic-feminist-women-of-color-racism-and-resilience-in-academia/ (last visited August 5, 2013).


[4] Angela Mae Kupenda, Facing Down the Spooks, in Presumed Incompetent 20, 24 (Gabriella Gutiérrez y Muhs, et al., 2012) (“Years later, I went natural with my hair. Then, many years after that, several of my black female students went natural. White classmates accosted them regularly and accused them of joining “Kupenda’s agenda” by stopping perming their hair and making themselves look more natural, which the white students felt was unnatural.”).


[5] Sherrée Wilson, They Forgot Mammy Had a Brain, in Presumed Incompetent 65, 70(Gabriella Gutiérrez y Muhs, et al., 2012) (“It felt hostile, and you know some very directly racist incidents happened. At one point, people in the school—it was African Americans, and I think gays and lesbians—got Klu Klux Klan notes under our doors. Or sometimes just plain old racist things were said.”).


[6] Kimberly R. Moffitt, et. al., Present and Unequal, in Presumed Incompetent 78, 89 (Gabriella Gutiérrez y Muhs, et al., 2012).


[7] Serena E, On Being Special, in Presumed Incompetent 152, 158 (Gabriella Gutiérrez y Muhs, et al., 2012)


[8] Sylvia R. Lazos, Are Student Teaching Evaluations Holding Back Women and Minorities?, Presumed Incompetent 164, 177 (Gabriella Gutiérrez y Muhs, et al., 2012).


[9] E.g., Delia D. Douglas, Black/Out: The White Face of Multiculturalism and the Violence of the Canadian Academic Imperial Project, in Presumed Incompetent 50, 56­–57 (Gabriella Gutiérrez y Muhs, et al., 2012).


[10] See, e.g., Carmen R. Lugo-Lugo, A Prostitute, a Servant, and a Customer Service Representative, in Presumed Incompetent 40, 45 (Gabriella Gutiérrez y Muhs, et al., 2012); Linda Trinh Võ, Navigating the Academic Terrain: The Racial and Gender Politics of Elusive Belonging, in Presumed Incompetent 93, 102 (Gabriella Gutiérrez y Muhs, et al., 2012); Grace Chang, Where’s the Violence?: The Promise and Perils of Teaching Women-of-Color Studies, in Presumed Incompetent 198, 198–199 (Gabriella Gutiérrez y Muhs, et al., 2012).


[11] Lazos, supra note 8, at 182.


[12] E.g., Cerise L. Glenn, Stepping In and Stepping Out: Examining the Way Anticipatory Career Socialization Impacts Identity Negotiation of African American Women in Academia, in Presumed Incompetent 133, 139 (Gabriella Gutiérrez y Muhs, et al., 2012). (“In addition to receiving responses from those inside academic institutions that African American women do not belong in our respective fields in academia as we obtain undergraduate and graduate degrees and begin interviewing for positions, these messages also come from our families, peer groups, and communities.”).


[13] See, e.g., Easton, supra note 5, at 161.


[14] Kupenda, supra note 42, at 23.


[15] Id.


[16] Id.


[17] Id.


[18] Lazos, supra note 8, at 181.


[19] Id. at 176.


[20] E.g., Michelle A. Holling, et. al., Dis/Jointed Appointments: Solidarity amidst Inequity, Tokenism and Marginalization, in Presumed Incompetent 250, 253 (Gabriella Gutiérrez y Muhs, et al., 2012) (“How come we talk of simply sustaining ourselves whereas our colleagues appear to be well positioned to explore the academy in a multitude of ways that feed them professionally? How come simply sustaining ourselves—surviving versus thriving—becomes the standard for womyn of color in the academy?”).


[21] See, e.g., id. at 263; Margalynne J. Armstrong & Stephanie M. Wildman, Working Across Racial Lines in a Not-So-Post-Racial World, in Presumed Incompetent 224, 240 (Gabriella Gutiérrez y Muhs, et al., 2012).


[22] Kari Lerum, What’s Love Got to Do With It?: Life Teachings from Multiracial Feminism, in Presumed Incompetent 266, 269 (Gabriella Gutiérrez y Muhs, et al., 2012).


[23] Michelle M. Jacob, Native Women Maintaining Their Culture in the White Academy, in Presumed Incompetent 242, 249 (Gabriella Gutiérrez y Muhs, et al., 2012).


[24] Võ, supra note 10, at 98.


[25] Holling, supra note 20, at 264.


[26] Chang, supra note 10, at 201.


[27] Dean Spade, Notes Towards Racial and Gender Justice Ally Practice in Legal Academia, in Presumed Incompetent 186, 189–90 (Gabriella Gutiérrez y Muhs, et al., 2012).


[28] Võ, supra note 10, at 108.


[29] Lazos, supra note 8, at 185.


[30] Id. at 453–62.


[31] Id. at 465, 467.


[32] Email from Carmen G. Gonzalez to Jean W. Strout (May 23, 2013, 23:42 EST) (on file with author).


[33] Id.


[34] See, e.g., Stephanie A. Shields, Waking up to Privilege, in Presumed Incompetent 29, 39 (Gabriella Gutiérrez y Muhs, et al., 2012).


[35] Armstrong & Wildman, supra note 17, at 238.


[36] See Kupenda, supra note 2, at 24–25.


[37] Lerum, supra note 18, at 268.


[38] Gabriella Gutiérrez y Muhs, Afterword, in Presumed Incompetent 501, 504 (Gabriella Gutiérrez y Muhs, et al., 2012).


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Saris, Courtrooms and Prison: Reinventing Indian Womanhood

Surina Diddi, Wellesley College '12, Madeleine Albright Fellow '11, B.A. Economics

The struggle of man against power is the struggle of memory against forgetting. ― Milan Kundera 

I felt so moved by Professor Montoya’s article Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse,[1] because her words captured so much of what my grandmother experienced, though they lived worlds apart. My grandmother, Sheila Didi, was nominated for the Nobel Peace Prize in 2005. Born and raised in segregated Kenya, she was one of the first Indian women to graduate with a law degree from England. As a young woman, she helped defend the infamous Mau-Mau trials in Kenya. In the wake of India’s independence from British rule, my grandmother moved to India, where she spent her life serving the poor as a human rights lawyer and a grass-roots activist. Like Professor Montoya, my grandmother adopted a variety of social and political masks throughout her life to be accepted by her peers. However, usually no mask was sufficient. My grandmother often radically defied societal norms, pioneering a new identity, like so many progressive minorities in her generation. The stories of countless minorities such as my grandmother remain untold and unrecorded.

My grandmother was seen as an outsider for much of her life—as an Indian girl raised in segregated Kenya; as one of the first minority law students in England; as a young Indian Kenyan woman in the Kenyan Independence struggle; as a highly-educated Hindu Brahmin woman involved in grass-roots activism in provincial India; as a politically active wife and mother in Indian leftist circles; and as one of the only female lawyers in the Indian High Court. She masked various aspects of her identity to be accepted by the mainstream community as a student in Kenya and England as well as a young activist in the Kenyan Independence struggle. When she began practicing law and became politically active in India, male lawyers and grass-root activists were at first very suspicious and unwelcoming. However, her elite legal education made her an indispensable asset, often giving her the license to defy gender and cultural norms. As my grandmother gained prominence in legal and political circles, she didn’t need to mask her identity as much. People began accepting her for her true self and saw her as a role model. However, her harshest critics reprimanded her for letting her family life suffer as a result of her legal and political activism.

I was assigned to read Professor Montoya’s article as a junior at Wellesley College.  This article, as well as the support from my advisors, Dr. Rangita de Silva de Alwis and Professor Christopher Candland, inspired me to write a hundred and ten page memoir about my grandmother, which remains unpublished in my personal archive. I wrote this memoir not only to honor my grandmother’s legacy, but to examine the forces that have shaped and defined me. I was born in India and raised in the suburbs of New Jersey. I feel like I have always lived on the fringe of the “real” America and never been fully accepted by the mainstream. In the United States, I have a shallow identity. I am an Indian-American girl, whose family immigrated to the United States in the late nineties. However, in India and Kenya, I am known by a myriad of familial, social and political relationships dating over a century. Learning about my grandmother’s life has been extremely empowering. Whenever I find myself feeling miserable or wallowing in self-pity, simply remembering my grandmother’s struggles and triumphs, gives me immense strength to move forward.

I first visited my grandmother’s childhood home in Kenya when I was sixteen. My great-grandfather was one of 32,000 young Indian men, recruited by the British Empire to build the Kenyan-Ugandan Railway at the turn of the 20st century. My grandmother, who was born in Nairobi in 1928, always spoke of her childhood in Kenya with nostalgia twinkling from her eyes. Her childhood home stood along an unpaved road bustling with mutatto vans, aggressive street vendors, cars and bicycles. The outer rooms had been converted into a local bar with red, plastic chairs, while the interior rooms were a small slaughterhouse. The stench of dead animals was unbearable. It was hard to imagine that this house, which consisted of five rooms and a veranda, was once shared by twenty-two people – my great-grandparents, five siblings and the families of three of my grandmother’s uncles.

In high school, my grandmother realized that as an Indian girl in segregated Kenya, she was severely disadvantaged.[2] She went to the Arya Girls’ school, which was run by European nuns. Kenya was a segregated, rogue state, where Indians and Africans often faced brutal forms of racism. She worked hard to be an excellent student. However, she quickly realized regardless of how hard she worked, as an Indian girl, her teachers would always deem her inferior to the white students. “We would sometimes encounter our teachers on segregated buses and on the streets outside of school,” my grandmother vividly recalled, “but they refused to acknowledge us! Such racial arrogance was dehumanizing!” History was taught from a British-centric perspective. Her history teacher, a short, fat Irish woman often told them, “Girls, you should be grateful to Henry the VIII. Why? Had he not created the British navy, India would not have been discovered!” These teachers also often openly insulted famous Indian revolutionaries such as Subhash Chandra Bose. This was the ultimate insult for my grandmother and her classmates, who saw these leaders as superheroes. Soon they began revolting by organizing protests in school.

Her social activism helped give her a license to defy gender norms from an early age. While many Indian girls remained in purdah,[3] wearing veils and spending the majority of their lives within high-walled enclosures at home, my grandmother was permitted to stay late at school and listen to lectures by the leaders of the independence struggle. Her mother, Shanti Devi Sharma, led Indian women to organize fundraisers, food drives, and protests for the Indian Independence movement.[4] She was a leader in the Arya Samaj temple[5] in Nairobi, which would regularly receive letters from Mahatma Gandhi.[6] Like Indian students across Kenya and South Africa, my grandmother and her classmates performed important milestones of the Indian freedom struggle in front of large audiences. These performances were a way of educating youth and their families about the struggle. At one such performance, my grandmother recounted with great excitement that “people came in the thousands to see us! When the performance ended, there was a standing ovation, and the audience began chanting Inquilab Zindabad! [Long live the revolution!] Jai Hind! [Long Live India!]. Our parents then realized that we could achieve something great for India!” her parents then decided to send her to the best possible education in England.  My grandmother soon set sail to attain a law degree in England in 1947, a year when over ninety-two percent of Indian women were illiterate.[7]

In England, my grandmother tried her best to assimilate into British society, even at the expense of abandoning certain Indian traditions. According to Professor Montoya, this is common among minorities trying to succeed.[8] My grandmother was one of the first two Indian women to attend Cardiff University. She wore Indian saris every day—sticking out like a sore thumb on campus. Her mother had hand-woven many of these saris, in allegiance with Mahatma Gandhi’s mandate to protest British fabric. My grandmother’s attire proclaimed her politics, just like Professor Montoya’s clothing at Harvard Law School. It made her acutely aware of how Indians were perceived in England. Kapila Hingorani, the other Indian student at Cardiff at the time told me that Indians and Africans were often perceived as savages by most British. British students would often ask them if they had swung from branches like monkeys to get to school in Kenya and India. Due to stereotype threat, just like Professor Montoya, my grandmother made the extra effort to seem clean, polished and well bred. Every day she carefully and tightly braided her long black hair and pressed her saris until no wrinkle was in sight.[9] Like many Indian students in England, she refrained from eating with her hands and learned the dining etiquette for traditional European five-course meals. She also tried to learn ballroom dancing, which was perhaps most shocking of all: “I remember after the College balls, outside our all-girls dormitory, there would be a line of girls and boys hugging and kissing. We walked past quickly, but sometimes we couldn’t help but catch a glance. We had never seen anything like it before. They didn’t feel at all embarrassed” My grandmother even went as far as legally changing her Indian name “Susheila,”[10] to the British name “Sheila.” Despite her efforts to fit in, like Professor Montoya and other minorities who were the first to enroll in western universities, my grandmother felt isolated. In the words of Professor Montoya, her private self was suffocating.[11]

Associating with international students offered her a new window for acceptance and empowerment. She spent all her vacations at an international youth hostel in London, where she became friends with many students from India and other European colonies. As youth from colonies rampant with poverty and racism, these students shared a deep camaraderie. Like the majority of students in England from colonial states, they became attracted to socialism.[12] World War II had recently ended and India as well as other colonies had just won their independence from colonial rule. As the educated elite of these developing nations, they were brimming with idealism and felt a heady responsibility for leading social reform. Many of the students my grandmother met later became famous pioneers of the leftist movements in their native homelands.

Quickly my grandmother plunged deep into the international Marxist movement. Under the guidance of the renowned Fabian Society in London, my grandmother began intensely studying socialist texts, which encouraged women and men alike to spearhead the transition to a socialist world. Just as Professor Montoya was empowered by her activism in the Chicano student movement, similarly my grandmother’s new Marxist identity gave her an “ideological” mask. Through this prism she experienced many new worlds, traveling to Budapest, Warsaw and Berlin for international socialist youth festivals that attracted tens of thousands of young people from around the world. My grandmother loved to talk about these youth festivals ad nauseam.

When we went to Budapest, fifty of us traveled from London in a truck! We sang songs, played games, cooked food, and drank alcohol along the way. We would spend the night at youth hostels in various countries. We would even occasionally sleep in barns! In Venice, we slept under trees near the Lagoon. In Budapest, we were greeted by a sea of Red flags, as well as portraits of famous Communist leaders worldwide such as Lenin, Marx, Stalin and Mao Zedong. There were so many events on all sorts of political and cultural issues from around the world. I remember attending ballets about evil landlords and harvest dances performed by Hungarian peasants.

My grandmother soon fell in love with Indian boys, who would serenade her with Tagore love songs and talk dreamily about the coming of the socialist revolution.[13] They were leaders in the London Majlis, an extension of the All India Students Federation, which strove to bring socialism to India.[14] She soon rose to become the General Secretary, making her acutely aware of injustice in India and beyond. She also worked closely with the World Peace Council, participating in large protests against the atomic bomb in Hiroshima and Nagasaki.[15]

When my grandmother returned to Kenya in 1954, after finishing several years of law school, she felt doubly estranged not only from her ancestral roots as an Indian Kenyan, but also from her law classes in England. Professor Montoya wrote that this is common among minorities who were the first to attain higher education.[16] Equipped with legal knowledge and a more global perspective, my grandmother was awestruck by the poverty and discrimination. Learning about the intricacies and minutia of English law seemed futile, when back home in Kenya, there was virtually no rule of law. Even decades later, when she recalled those days, you could hear the fury in her voice: “The British had a double standard! They had fought against fascism, Aryan superiority and what not in Europe, but they treated us Indians and Kenyans like slaves!” she said. She explained the curfew system in place under the reign of Kenyan Martial Law:

Africans could only roam the streets until five pm. Sometimes, if we missed the curfew we would actually hide the Africans in the boots of cars. Can you believe it? The British would often just lay down barbed wire around an area and demand Africans to show their Kipande as they say in Swahili, or their identity card. All those without Kipande were immediately sent to jail. I will never forget, one time I was standing outside my father’s shop, and I saw an old African man with a wooden basket buying vegetables for his white master. The police came and demanded to see his Kipande. The old man began apologizing profusely because he didn’t have this identification. But the police gave him several lashes and threw him into their van! It shook me. I saw the plight of this old man. Tears were just rolling down my cheeks!

My grandmother joined the Kenyan Independence struggle. This was the first time she immersed herself in Black Kenya. After making Black friends in England, in Kenya, she was eager to transcend racial boundaries and “know Africans as persons.” Initially she did not tell her family that she was meeting them. Interactions among the Indians and Africans were often frowned upon. Like many Indian families, her servants had been her only contact with Black Kenya. As a young Indian Kenyan activist, not all of the African activists were friendly and welcoming to her. “I was totally shocked and ashamed when I found out that there were Indians who were acting as home guards, and helping the British suppress the Africans.”[17]

Her English legal training made her immensely valuable to Kenyan activists. She began working for prominent Indian lawyers in the East African Indian National Congress, who were fighting for those in the infamous Mau Mau struggle. [18] She worked for Fitz D’Souza and Achroo Kapila, who defended Jomo Kenyatta, a revolutionary who later became Kenya’s first Prime Minister, and countless others in the Mau Mau trials.[19] “Under Martial law, the death sentence was often pronounced on flimsy evidence after holding a sham trial. It was common to see young African women crying outside the courtrooms because their husbands or some other relative was pronounced to be hanged,” my grandmother recalled. When she returned to England, she worked for Peter Mbiyu Koinange, who was defending thousands of poor Kenyans whose land had been evicted by the British.  He later became the Vice President of Kenya.

Upon graduating from law school in 1956, my grandmother left the splendors of London and moved to India to a tiny, industrial town named Ludhiana to serve the poor. She was perceived as an exotic outsider due to her elite education in England.  Grass-roots activists were often deeply suspicious of her. Her friend told me:

Most activists were men from the working class and lower castes. It was extremely rare to see a young Hindu Brahmin woman, that too a law graduate from England, with a keen desire to work in the slums, villages and labor colonies. It was a strange sight—Sheila would often wear her fur coat to outreach sessions in villagers and sometimes go door to door to raise awareness for various causes.

There were also very few women in the field. My grandmother also organized countless protests and rallies where she and the other women would sing songs to protest. Perhaps, as women in the 1950s, singing was considered a more acceptable way of unmasking their radical intentions and communicating them to the masses.[20] With much time and effort, my grandmother gained acceptance, running for State Legislature in 1962 and later for Parliament in 1977 on a leftist ticket.[21] During Parliamentary elections, my grandmother recalled:

People came in thousands to see us in the final debate! This was the first time I had addressed so many people from all walks of life. In the beginning, thousands of people began chanting my name along with my party’s name. I felt so elated. I thought, are all these people really chanting my name— Sheila Didi? Who is this Sheila Didi? Do I know her?

As one of the first three women lawyers out of two hundred men in the Punjab and Haryana High Court, my grandmother staunchly defied traditional gender norms and faced many hardships as a woman. “Often times, male clients would not take me seriously. They would smirk— how could a woman be powerful and convincing in court? I often had to work harder than the men to prove that I was an excellent lawyer.” Though men hesitated to accept her, she was extremely valuable to the courts. After independence, the Indian courts continued to utilize the English criminal code. With a law degree from England, my grandmother was one of the privileged few who could interpret British law. And yet, after my grandmother passed away, I discovered that some senior advocates would ask her for sexual favors long after she was married with three children. She never told me, perhaps because she wanted to shield me from this ugliness.

My grandmother handled human rights cases involving worker rights, sexual harassment, corruption, domestic violence and dowry. She often defended the poor, who had little means to pay her. As a prominent member of well-established grass-roots women’s organizations—the National Federation of Indian Women and the Punjab Istri Saba, my grandmother was acutely connected to problems at the slum and village level.  Through these organizations, she provided pro bono legal counsel to women on a host of issues every week. These women often did not have the knowledge, resources or familial support to take legal action. In 1962, with the help of the National Federation of Indian Women, she fought one of the most prominent dowry cases,[22] which went up till the Supreme Court. A poor woman named Kamla Dhamda was murdered by her in-laws, because they claimed her family had given insufficient dowry.  My grandmother recalled “her father would come and visit me daily at our house.” My grandmother won the case, as Dhamda’s in-laws were sentenced to life in prison.[23]

During the brutal Khalistan militancy[24] in the 1980s, my grandmother witnessed many atrocities while traveling across Punjab to the hotbeds of terrorist activities with the Punjab Istri Saba. At times there were over seventy cases in my grandmother’s files in just one month. In order to maintain order, the state became draconian. My grandmother recounted a chilling example, where two young men, who were accused of being part of a criminal tribe, were imprisoned without a trial. These men were innocent and had no idea why they were in prison. Their sixteen-year old wives, Phoolmati and Santra, stood in front of the prison for days. The girls were sexually harassed by the police. One of them was even hung naked from the ceiling of a prison ward for days. Such cases were unfortunately common during this era of utter lawlessness. The case continued for months before the police officers were fortunately arrested and convicted with seven years in prison.

On a personal front, my grandmother was hardly the stereotypical Hindu Brahmin wife and mother.[25] Her roles as a human rights lawyer, a political activist and mother of three often combatted with each other. Her family life suffered because she focused so intensely on her social activism. Her harshest critics have chastised her for spending limited time at home with her three children and for not knowing how to cook as an Indian woman. She did not marry until she was twenty-seven, which was considered dinosaur age for Indian brides in the 1950s. When her family urged her to get married, she declared that she would only marry a Marxist, who would be permissive of her social activism. She married my grandfather, Madan lal Didi, a trade-union leader. Like most Indian public servants, he often received a meager salary. Often times, my grandmother became the sole bread-winner. The day after her wedding, my grandmother began canvassing for my grandfather’s political campaign in the sweepers’ slums. This was extremely taboo for a bride, as Brahmins deeply pride themselves with their cleanliness. After marriage, often times, my grandmother’s political protests would become violent, concluding in her arrest. My grandmother was once imprisoned for about a month shortly after giving birth to my father. The warden allowed my father to spend a few nights with her in prison. There was also often no division between the personal and political in the house. Many times the villagers she was defending in court would visit the city for their court cases. They were often too poor to afford housing so my grandmother would house them in her living room. There were over seven people sharing a modest apartment. Family members sometimes complained that the house was a guesthouse for anyone with political or charitable ties.

After writing much of my grandmother’s narrative, what was equally eye-opening was the way various people and groups reacted to my writing. When I began writing this memoir, little did I know I would be challenging a variety of power structures. Though my grandmother was one of the 1000 women nominated for the Nobel Peace Prize in 2005,[26] she did not think she was extraordinary by any means. When I told her I wanted to write a book about her life, she and many family members were appalled. Could this be a worthy pursuit as an Economics major at Wellesley College? In her old age, many knew little about her accomplishments. They simply saw her as just another little old lady, who lived in a second-floor apartment on Ring Road in New Delhi, India. As an 83 year old, she was frail— wearing a neck and hip brace and limping with a walking stick.

Some felt threatened by my writing, which recorded my grandmother’s accomplishments. Some have consistently dismissed her achievements. Perhaps this is a way of justifying their lackluster lives. One person told me “child, you are forgetting that your grandmother was a woman. As a woman you are responsible for taking care of the household, which she did not do well.” Many also felt threatened by me. As I interviewed family and my grandmother’s colleagues for this project, I was also no longer a sweet, young girl who sang Indian Classical music melodiously, but a foreign American judging them through a starkly different perspective. I constantly questioned the validity of my perspective due to my age, gender and Indian-American identity.

Perhaps this is a testament to Professor Montoya’s words about how the stories of outsiders, of minorities and of women are often silenced. Speaking out and discovering the validity of your perspective requires a great degree of confidence, as Professor Montoya says. As I began to research further, I realized that what I was experiencing was a systemic problem. Though much has been written about elite Indian political families such as the Nehru-Gandhi family, little has been written about reform at the grass-roots level, and particularly about the women in this movement. My grandmother’s stories and those of thousands of women in the Indian women’s movement remain largely untold and unrecorded. Perhaps for this reason, many of my grandmother’s colleagues felt their lives were insignificant and unworthy of publication; they didn’t seem to realize how their public contributions were important forces in broader reform.

The winners of history often write history books. Personal narratives, as Professor Montoya writes, can often challenge the dominant power structure. Individual stories remind us that our generalizations about places, movements, and ideology erase diversity and difference, which is why recording personal stories is crucial on a personal and political level. The more I poured hours into researching my grandmother’s life, the more empowered I became. Sometimes a sentence embodying her idealism, her sacrifice, her courage struck me and my eyes brimmed with tears. I hope my writing inspires others to write their personal narratives.


The above article is a revised excerpt of my 110 page memoir about my grandmother, which remains unpublished and part of my personal archive. My grandmother’s quotes in my article stem from this work. I conducted my research by interviewing her over Skype and many scholars in the US over several months. I also spent a month interviewing prominent scholars, lawyers and social activists in India, with the help of a grant from the Wellesley College Dean’s Office.

Over the last two years, so many people have helped me immensely. I want to thank Professor Margaret Montoya for recognizing my work as worthy of publication. I am also eternally grateful first and foremost to Dr. Rangita de Silva de Alwis and Professor Christopher Candland for their inspiration and support. I also would have never read Professor Montoya’s article if it wasn’t for Professor Tom Burke. Professor James Oles, Professor Marilyn Sides, Professor Nikhil Rao, Professor Gyan Prakash, and so many other distinguished scholars also offered me critical guidance. My family, friends and my grandmother’s colleagues offered immense support and personal insights. The following list certainly does not do justice to all those who have helped me. I have listed them alphabetically and not by any means in order of importance: Ms. Kanta Advani, Mr. Pawan K. Bansal, Ms. Rani Balbir, Mr. Bant S. Brar, Mr. Amarjit Chandan, Mr. Devi Dayal, Mr. Jogender Dayal, Mr. Rahul Diddi, Ms. Shumita Didi, Mr. Amit Ghosh, Mr. Anupam Gupta, Ms. Sumitra Gupta, Ms. Pushpa Hingorani, Ms. Khoja, Mr. Jaswinder S. Mand, Mr. Inder Mehta, Ms. Oshima Reikhy, Ms. Rita Sharma, Dr. Visho Sharma, Ms. Poonam Singh and Mr. Debi S. Tewatia.

I had many sleepless nights while writing this article. As a twenty-two year old girl in an Indian family, I was commanded to not write about many of my grandmother’s experiences— ones that could harm our family’s honor. I apologize to my family and family friends. After much thought, I decided to breach the silence and write an honest account about my grandmother’s life, one voicing her struggles and triumphs.



Photo outside of my grandmother’s school in Nairobi, Kenya in the 1930s. My grandmother is in the middle, holding the two babies.


My grandmother at the age of 18 in Kenya (on the right) with a friend, Sheel Chabra

  My grandmother in the top row in the middle. This photo was taken on a Polish ship called the Batory, while going to the Berlin Socialist Youth Festival in 1953.


My grandmother on the left sitting by student tents at an international socialist youth festival in Budapest in 1953.


My grandmother on the left performing an Indian dance for a group of European students at an international socialist youth festival

 My grandmother in Nairobi, Kenya in  1955. Peter Mbiyu Koinange, pictured next to her, later began Vice President of Kenya


My grandparents in the late fifties, after their marriage, at Okhla Barrage by the Yamuna river  in Delhi.  The photo was taken by poet Krishan Adeeb.


My grandparents’ wedding in 1956


[1] Margaret E. Montoya, Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women's L.J. 185, 202 (1994).

[2] Prior to high school, she attended primary and middle school in an Indian gurukul, which were run by the Arya Samaj, a reformist sect of Hindus who were leaders in the Indian Independence movement. Instead of learning nursery rhymes, she learned revolutionary slogans.  “Jail chaloege? [Will you go to jail?] hahn bhai hahn! [Yes oh yes!]” “Mil jayegi, [What will you get?] Kya bhaee Kya? [What oh what?] Azadi! [Freedom!] Wah bhaee wah! [Wonderful oh wonderful!]”

[3] Purdah Definition, Encyclopædia Britanica, http://www.britannica.com/EBchecked/topic/483829/purdah (last visited Mar. 6, 2013). During the Independence movement, countless Indian women were encouraged to leave their traditional domestic roles and participate in the struggle by adopting public roles for the first time.

[4] In the sixties, her mother helped to mobilize Indian women for Kenya’s independence struggle. For her efforts, President Arap Moi gave her the Freedom Fighter award— the highest national honor for the independence struggle.

[5] Her father was one of the cofounders of the Arya Samaj temple in Nairobi.

[6] Bipan Chandra, India's Struggle for Independence 169–175 (1989).

[7] G. Balatchandirane, Gender Discrimination in Education and Economic Development: A Study of Asia 20 (Mar. 2007), available at http://www.ide.go.jp/English/Publish/Download/Vrf/pdf/426.pdf.

[8] Montoya, supra note 1.

[9] She followed the advice of Jawaharlal Nehru, the first Prime Minister of India, who advised Indians to remain at their best for their actions will help shape British perception of India. She heard him speak several times to a small group of students in London and was elated to shake his hand.

[10] Susheila means beautiful girl in Sanskrit.

[11] Montoya, supra note 1, at 14.

[12] Nicholas Owen, The British Left and India: Metropolitan Anti-Imperialism 1885-1947 (2007).

[13] These boys later became leaders in the leftist movement. Mr. M. B. Naidoo became a prominent human rights lawyer in South Africa. Twenty years after college, when my grandmother visited Zimbabwe, she discovered that he had become famous. “In the early sixties, he was jailed along with sixty other people on Robben Island for his human rights activism,” my grandmother said. The other boy, Prabhov Banerjee became active in the Communist movement in Bengal.

[14] The All India Students Federation also worked closely with the Independence for India League, which was founded in 1928 by Jawaharlal Nehru and Subhas Chandra Bose. (Chandra 298)

[15] My grandmother collected signatures for a peace petition, which had almost three million signatures worldwide. This included the entire adult population of the Soviet Union as well as celebrities such as Duke Ellington, Pablo Nerudo and Pablo Picasso. (www.wpc-in.org/informationletter)

[16] Montoya, supra note 1, at 6.

[17] My grandmother admitted that it was sometimes necessary for Indians to use violence against the Africans “there was anarchy in many areas. Africans were killing in a brutal manner.”

[18] Loomba, Ania. The Crooked Line: Memory, Communism and Feminism in India. Forthcoming book. “In 1952 the Mau Mau began advocating violence against the colonial government and white settlers. Kenyatta did not advocate violence but the colonial authorities arrested him and five other KAU leaders in October 1952 for allegedly being part of Mau Mau.”

[19] My grandmother translated desperate letters from the Mau Mau prisoners from Swahili to English. The British had often evicted their land and imprisoned them. They would plea to the Indian lawyers to defend them in court.

[20] Ania Loomba, The Crooked Line: Memory, Communism and Feminism in India 29–30 (forthcoming) (on file with author).

[21] When she ran for Parliament, one of her opponents was Krishen Kant, who later became the Vice President of India.

[22] In 1961, Prime Minister Jawaharlal Nehru enacted the Dowry Prohibition Act. However, dowry-harassment persisted throughout out the country. See Mohammad Umar, Bride Burning: A Socio Legal Study 15 (1998). Until 1978, dowry murders were commonly reported as suicides due to causes unrelated to dowry-harassment. These ‘suicides’ were deemed private affairs and rarely investigated by the state. Radha Kuhmar, The History of Doing, An Illustrated Account of Movements for Women's Rights and Feminism in India, 1800-1990 119 (1993).

[23] “Kamla Dhanda’s clothes were shown in the court as evidence of the murder. When the clothes were shown in court, the girl’s father fainted, my grandmother said.  Concurrently, as one of the leaders of the National Federation of Indian Women, she organized a demonstration to raise awareness for dowry abuse and over 6,000 women attended.

[24] From approximately 1980 to 1992, the Indian state of Punjab was a hotbed of separatist terrorism. About 25,000 people were massacred in the name of establishing a Sikh state of Khalistan, independent from Hindu-majority India. See Virginia Van Dyke, The Khalistan Movement in Punjab, India, and the Post-Militancy Era: Structural Change and New Political Compulsions, 49:6 Asian Surv. 975 (Nov/Dec 2009), available at http://www.jstor.org/stable/10.1525/as.2009.49.6.975. Among those killed by the militants was my aunt’s husband or my grandmother’s son-in-law, Sumeet Singh. He was the editor of Preetlahri magazine, one of the oldest, most renown Punjabi publications. Indira Gandhi, the Prime Minister at the time, offered her condolences to our family in person and the incident received national coverage.

[25] Brahmins are the highest castes in the Indian caste system.

[26] She was nominated as part of the “1000 women for Nobel Peace Prize 2005” initiative, which sought to recognize 1000 women fighting for peace and justice at the grass-roots level around the world. See PeaceWomen Across the Globe, http://www.1000peacewomen.org/eng/aktuell.php (last visited Mar. 24, 2013).

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Unmasking Law: Women of Color Pioneering Critical Outsider Scholarship

Francisco Valdes*

Please click here to access a PDF version of this article.

A Reflection on Margaret Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L. J. 185 (1994), 15 Chicano-Latino L. Rev. 1 (1994)

When Margaret Montoya composed Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse (hereinafter Máscaras), she was doing what she always does: making and marking history. Published in 1994 concurrently by the Harvard Women’s Law Journal[1] and the UCLA Chicano-Latino Law Review,[2] Máscaras was emblematic both of a time and a life. It embodied a breakthrough in legal scholarship, and helped to catalyze a paradigm shift within the U.S. legal academy that is both accomplished and lively today. Though perhaps this was not well understood then, it should be by now.

In 1994, women of color had just begun to penetrate legal academia, and among them Latinas were a true rarity. Like other groups historically excluded from the academy, women of color had begun breaking barriers and working their way through mainstream institutions in the 1970s, and by the 1990s were beginning to reach the unfriendly gates of the legal professorate. Along the way, they had to do, on the fly, many of the things that people still write about to survive and prosper in hostile or indifferent institutions.[3] At that time, the “imperial” academy reigned with near hegemony.[4] Realism had been substantially assimilated and domesticated, while the critical legal scholars had been decimated, scattered, and almost silenced.[5]

Under these personal and structural circumstances, Professor Montoya and her academic generation pioneered overlapping fields of legal studies sharing and blending a critical and outsider perspective. Whether in critical race theory, feminist legal theory, LatCrit theory or queer legal theory, women of color have been at the forefront.[6] They have altered the intellectual landscape forever with the force of their ideas and the persistence of their examples, with an impact that has spanned both substance and method. Substantively, women of color have refused to accept the unstated premises and imperatives of the legal or social status quo, and have begun their work with challenges to oftentimes-hidden foundations. Their counter-normative pioneering has helped reshape fields of law ranging from employment to property to criminal. It has helped to expose and destabilize the grip of patriarchy and other identity-based ideologies of inequality over law and policy, and over culture and society.[7]

Methodologically, women have challenged analytical abstraction and uncritical empiricism, insisting instead that voices from the “bottom” be heard.[8] They have sought to center in knowledge and policy the insights born of experience with subordination. For decades, they have worked diligently and brilliantly to promote a critical kind of contextualized empiricism focusing on “shifting bottoms”[9] in a way that combines social science and experiential knowledge to challenge the limitations and impositions of academic imperialism.

Notably, that generation of pioneers championed the technique of storytelling as legal method.[10] This turn to critical legal narrative became a potent method for conveying substantive insights and knowledge historically kept suppressed or marginal by the norms, incentives, and politics of imperial scholarship. When dismissed by self-anointed gatekeepers of imperial tastes,[11] they persisted in the novel combination of traditional and non-traditional approaches to legal scholarship.[12] While the terms of engagement were seriously in contest, Margaret Montoya captured the sense of that historical moment:

The exploration of personal agency through autobiography and the seizure of discursive space formerly denied to Latinas are regenerative acts which can transform self-understanding and reclaim for all Latinas the right to define ourselves and to reject uni-dimensional interpretations of our personal and collective experience . . . The emphasis of critical scholarship (critical race theory, feminist jurisprudence, critical legal studies) on narrative affirms those of us who are Outsiders working within the objectivist orientation of the legal academy and validates our experimentation with innovative formats and themes in our teaching and in our scholarship.[13]

But this work on substance and method went beyond the advancement of criticality and narrativity from outsider perspectives.

Moved not only by a sense of history but also by a sense of mission, Professor Montoya and her generation strove to reconstruct the very being of the profession to help bridge existing gulfs between law and justice. Pushing always for the linkage of theory to action—of legal knowledge to social change—they have modeled a new kind of academic activism that values service and teaching as much as scholarship in the pursuit of equality, opportunity, and dignity. They not only have launched new lines of inquiry and fields of scholarship but also have refined the very basics of the profession to make academic work holistically relevant to social justice in personal, collective, and sustained terms.

As a result, legal criticality has prospered. From the vantage point of the present, we know that Máscaras has helped to make and mark this history. It is no coincidence that Margaret Montoya of Las Vegas, New Mexico, composed this text when and how she did. It is no coincidence that we celebrate it today.

Combining the granular with the structural, the institutional with the individual, the personal with the political, Máscaras reflects and projects the convergence of three major forces. The first is Margaret Montoya herself—her life, her story, her heritage, her family, her times. The second is the unfolding of “diversity” as a social and political phenomenon across the U.S., both within the academy and throughout society, in the mid-to-late twentieth century. The third is the emergence of critical and outsider studies from within the legal academy of the United States at precisely this moment, which has opened new chapters and possibilities in the academic production of legal scholarship. This text seamlessly, magically interweaves these three themes or forces to become the classic it has become today.

Opening with a choice bold even today, Professor Montoya begins with a revealing and powerful account of growing up Mexican in mid-1950s New Mexico, and the epistemological and political ramifications of that upbringing which were to follow:

I remember being assigned to tutor another second-grader in reading. He wore denim overalls, had his hair shaved for some medical procedure and spoke mostly Spanish. I think of him now, and perhaps thought of him then, as being exposed—exposed by not being able to read, exposed by not having a uniform, exposed by not having hair, exposed by not knowing English. From my perspective as a child, it all seemed connected somehow—Spanish-ness, sickness, poverty and ignorance.

By the age of seven, I was keenly aware that I lived in a society that had little room for those who were poor, brown, or female. I was all three. I moved between dualized worlds: private/public, Catholic/secular, poverty/privilege, Latina/Anglo. I moved between these worlds. My trenzas and school uniform were a cultural disguise. They were also a precursor for the more elaborate mask I would later develop.[14]

Using the metaphor of the mask, the article then takes us through a detailed, deep (and sometimes sadly common or familiar) review of the multiple and varied ways in which identity and power intersect in law and society to privilege some at the expense of others.

Expanding the scope of this framing, Professor Montoya uses trenzas—braids—and greñas—unruly hair—to explore and narrate the process of un/masking set up by the use of the máscaras metaphor. This process of masking and unmasking produces, in different ways at different times, acts of revelation—unmaskings that reveal the unruly roots or circumstances of our othered identities, the exposed greñas resulting from the display of characteristics or features disfavored from a mainstream, privileged, power perspective. Other times, the project of masking amounts to the careful arrangement of the self for presentation to the forces and structures of power and opportunity—the braiding of one’s self to present an image or package acceptable to gatekeepers of law and society. Thus, máscaras, trenzas, and greñas reflect the un/masking of the self while un/braiding Latina stories and legal discourse. These three constructs provide the essential discursive toolkit for Professor Montoya’s pathbreaking articulation of critical antisubordination perspective in this article.

Reflecting that upbringing and the socio-cultural circumstances of her generation in legal education, the text juxtaposes the worlds of personal origins with that of academic success to expose and learn from the dynamics of approval, inclusion, humiliation, or disregard that humans execute daily to shape destiny. It is an enduring case study in the engagement of the personal and the structural, of the systemized macro-aggression and of the personalized micro-aggression.[15] The stories of class discussions, including the pregnancy and prosecution of Josephine Chavez—apparently the only Latina to be encountered in a legal casebook at that time—are riveting.[16] Whether in criminal law questioning criminality itself or in tax class trying to discuss the coupons of negotiable bonds,[17] the key point again and again is the un/masking of law as power. And in centering narrative, Professor Montoya demonstrates powerfully that “telling stories” is very much a profoundly knowledge-producing method.

As Professor Montoya notes, storytelling is a core practice in law.[18] Clients tell stories to their lawyers, witnesses tell stories to police, lawyers tell stories to jurors, and reporters sell all those stories to the public. Given its pervasiveness, storytelling should come as no big deal when encountered in legal scholarship. Yet, it is; perhaps, because narrative often helps to articulate critical stances toward the status quo with a force that imperial “analysis” often enough cannot.

When the rhetorics and methods of “law” did not permit critical insights to be effectively expressed in conventional or imperial terms, the turn to narrative created new possibilities for sharing insights and producing knowledge. As Máscaras underscores, these are not stories told for their own sake, but to illuminate obscured social realities and catalyze remedial action. Professor Montoya explains it this way, specifically about the Chavez case:

Embedded in Josephine Chavez’s unfortunate experience are various lessons about criminal law specifically and about the law and its effects more generally. The opinion’s characteristic avoidance of context and obfuscation of important class-and gender-based assumptions is equally important to the ideological socialization and doctrinal development of law students.  Maintaining a silence about Chavez’s ethnic and socio-economic context lends credence to the prevailing perception that there is only one relevant reality.[19]

As Professor Montoya has shown in this text and a thousand times since, she never has been one to remain silent—even though law school’s “training” made her feel that way for a while.

It bears emphasis that, in the 1980s and 1990s, a critical outsider stance was riskier than it is today. Those were days when most barriers remained intact, including those based on color and sex. Professor Montoya herself was the first Latina admitted to Harvard Law School. That was 1972. As Professor Montoya observes in Máscaras, “in 1989, only 6.2% of Mexican-Americans over age 35 had completed four years of college, as compared with 20.6% of the non-Hispanic population.”[20] Half a decade later, when Máscaras was published, 1.9% of U.S. law professors were women of color.[21] Illustrating the demographics and dynamics of the moment, 15.2% of assistant professors in 1994–95 were women of color.[22] Nearly a decade later, in 2002–03, the numbers were 4.3% and 13.6%, respectively.[23] Pause a moment to reflect on the demographics and discourses of all those rooms and conferences for all those years. For two decades, the odds have been that Professor Montoya found herself a “society of one” in most professional contexts.[24] In any given workplace situation, she was making and marking history.

Pioneering is a rough and lonely business, attractive only retrospectively, if at all. This is how Professor Montoya phrased it:

Mine is the first generation of Latinas to be represented in colleges and universities in anything approaching significant numbers. We are now represented in virtually every college and university. But, for the most part, we find ourselves isolated. Rarely has another Latina gone before us. Rarely is there another Latina whom we can watch to try and figure out all the little questions about subtextual meaning, about how dress or speech or makeup are interpreted in this particular environment.[25]

Professor Montoya and her generation had little choice but to become critical and outsider pioneers. That they have done so with much courage, creativity, and love is a testament to their resilience, character, and vision. That they never shirked danger is a gift to us all.

The stories preserved in Máscaras thereby also serve as stark reminders of the legal academy and culture constructed by this nation; an academy and culture designed specifically to filter out folks like Professor Montoya. For example:

In 1922 the Yale Board of Admissions was deeply concerned about the “Jewish problem.” In that same year, a Yale psychologist warned the state bar association that “this invasion of foreign stock” was undermining the “finer professional spirit and feeling which characterizes the professional training of the typical American lawyer.” Dean Swan of the Yale Law School suggested to the state bar in 1923 that students with foreign parents should be required to remain longer in college than native-born Americans before being admitted to law school. At a Yale faculty meeting in the same year, Swan argued against using grades as a basis for limiting enrollment to the law school, because such a development would admit students of “foreign” rather than “old American” parentage, and Yale would become a school with an “inferior student body ethically and socially.”[26]

This exemplar shows the tightly interlinked operation of racism, nativism, and related supremacies in the design, construction, and consolidation of legal education and culture in the United States. This is the carefully drawn baseline of structural exclusion based on neocolonial identity politics that critical outsider scholars and activists have been struggling to overcome and reform—a baseline grudgingly modified at the margins in recent decades, but never unhinged ideologically from its exclusionary designs and effects.

Once again bringing together the personal/biographical with the intellectual/social, Professor Montoya concludes Máscaras with an illustrative note on the legal politics of language, identity and power. This section of the article tellingly is titled, “Pursuing Mestizaje (Transculturation) in the Legal Academy,” and begins with legal history and personal circumstance already entwined:

The Euro-American conquest of the Southwest and Puerto Rico resulted in informal and formal prohibitions against the use of Spanish for public purposes. So by inscribing myself in legal scholarship as mestiza, I seek to occupy common ground with Latinas/os in this hemisphere and others, wherever situated, who are challenging “Western bourgeois ideology and hegemonic racialism with the metaphor of transculturation” . . . incorporating Spanish words, sayings, literature and wisdom can have positive ramifications for those in the academy and in the profession, and for those to whom we render legal services.[27]

In the end, then, this is the legacy of legalized injustice that forms Margaret Montoya’s antisubordination agenda; this is the wreckage of history that her work and life now help to make and mark anew.

Two decades on, Professor Montoya and others of her generation are nearing retirement from the academy as new generations enter its ranks.[28] The legacy of academic activism that critical outsider pioneering has accumulated in the twenty years since Máscaras was published is thus our collective inheritance literally—the unfinished mission of our inter-generational work as law professors committed to antisubordination change in multidimensional terms that span race, sex, class, orientation, disability, and other constructs of privilege and oppression. Pushing this “rebellious” agenda along is the challenge awaiting the new (and coming) generations of critical outsider scholars, lawyers, organizers, and activists.[29] What comes next is the history that remains for us to write and produce, but we have strong and vibrant foundations from which to proceed. And for their living, breathtaking achievement, social justice legal studies in the U.S. and beyond will be always indebted to Margaret Montoya and her compañeras de color, who have unmasked law and pioneered critical outsider studies with grace and grit during the tumultuous decades since the late 1980s and 1990s.

Bravo! Kudos! Mil gracias por todo!

Cite as:  Francisco Valdes, Unmasking Law: Women of Color Pioneering Critical Outsider ScholarshipHarv. J. L. & Gender (Feb. 2013) (reflection on Margaret Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L. J. 185 (1994), 15 Chicano-Latino L. Rev. 1 (1994)), www.harvardjlg.com/2013/03/unmasking-law-women-of-color-pioneering-critical-outsider-scholarship.

* Professor of Law, University of Miami. Many thanks to the organizers and editors of this symposium for the opportunity to express and record these thoughts, and many thanks to Professor Montoya and her compañeras de color for making law and life a little bit better.  All errors are mine.

[1] Margaret E. Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L.J. 185 (1994) [hereinafter, Montoya, Máscaras].

[2] Margaret E. Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 15 Chicano-Latino L. Rev. 1 (1994).

[3] See, e.g., Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Angela P. Harris and Carmen Gonzalez eds., 2012).

[4] See generally Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. Pa. L. Rev. 561 (1984); Richard Delgado, The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later, 140 U. Pa. L. Rev. 1349 (1992) (discussing the “imperial tradition in legal education and scholarship).

[5] See, e.g., Michael Fischl, The Question That Killed Critical Legal Studies, 17 Law & Soc. Inquiry 779 (1992) (discussing the demise of CLS and the climate in legal education and scholarship during those times).

[6] E.g., Adrien K. Wing, Critical Race Feminism: A Reader (1997) (presenting a pioneering collection of texts by women of color).

[7] See, e.g., Symposium, The Third Annual Conference on Women of Color and the Law, 43 Stan. L. Rev. 1183 (1990–1991) (presenting a collection of essays reflecting the vibrancy of that moment).

[8] See, e.g., Mari I. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987) (presenting this approach to policy analysis as a form of critical antisubordination methodology).

[9] See, e.g., Athena D. Mutua, Shifting Bottoms and Rotating Centers: Reflections on LatCrit III and the Black/White Paradigm, 53 U. Miami L. Rev. 1177 (1999) (discussing and tweaking this methodology).

[10] See, e.g., Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989).

[11] In response to the innovations of critical outsider scholars, including the embrace of legal narrative, some white scholars raised numerous objections—some startling, all wrong—in defense of traditional, imperial “standards” of “real” scholarship. E.g., Daniel A. Farber & Suzanna Sherry, Is the Radical Critique of Merit Anti-Semitic?, 83 Calif. L. Rev. 853 (1995) (illustrating traditionalist attacks).

[12] E.g., Margaret E. Montoya, Celebrating Racialized Narratives, in Crossroads, Directions, and a New Critical Race Theory 243 (Francisco Valdes et al. eds., 2002).  (rejecting traditionalist attacks).

[13] Montoya, Máscaras, supra note 1, at 214–15.

[14] Montoya, Máscaras, supra note 1, at 190.

[15] During those groundbreaking years, critical outsider scholars examined the interplay of great social forces with the “small” acts of social discipline that jointly produce the webs of subordination based on race, sex, class, and other constructs reinforced and normalized in law. See, e.g., Peggy C. Davis, Law as Microaggression, 98 Yale L. J. 1559 (1989) (discussing the social dynamics of “microaggression”); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365 (1991) (discussing the role of hair in everyday constructions of privilege and subordination).

[16] Montoya, Máscaras, supra note 1, at 201–05.

[17] Id. at 207.

[18] Id. at 214.

[19] Id. at 206.

[20] Id. at 190 n.18.

[21] Id. See also Am. Ass’n of Law Sch., Statistical Report on Law School Faculty and Candidates for Law Faculty Positions, 42 (2002-03) [hereinafter “AALS”].

[22] AALS, supra note 21.

[23] Id. at 46.

[24] Rachel Moran, The Implications of Being a Society of One, 20 U.S.F. L. Rev. 503 (1985-1986) (discussing tokenism in legal academia).

[25] Montoya, Máscaras, supra note 1, at 190–91.

[26] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 101 (1983). For a thorough historical account that covers class-based, race-based, sex-based, immigration-status based, and religion-based ideologies invoked to structure the design and details of legal institutions, see Jerold S. Auerbach, Unequal Justice: Lawyers and and Social Change in Modern America (1976).

[27] Montoya, Máscaras, supra note 1, at 216.

[28] In fact, Professor Montoya herself is formally retiring from law school teaching this very year, but remains busy with many projects and her teaching and administrative role at the medical and law schools of the University of New Mexico, where she has spent her entire teaching career.

[29] See generally Gerald P. Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992).

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My Road to Blackness

The following passage is an excerpt from a speech delivered by Patrick Mason Ragen, the 2012-2013 President of the Harvard Black Law Students Association (“HBLSA”) at this year’s 30th Annual HBLSA Spring Conference. While not a direct response to Montoya’s article, the speech resonates with several of its underlying themes, including the experience of being the “other,” and the performance of one’s racial identity at the Law School.

Around a year ago, I learned that I had won the election to become BLSA President. As most of you know, I was running against the incredible Julian Hill, a 1L at the time. He has been the best External Vice President that HBLSA could ever hope for, and more importantly, he’s become a true friend and brother.

After I won, I felt happy, renewed, invigorated, ready to serve BLSA. But to be honest, there was still a nugget of insecurity within me, a part of me that really thought – “Damn. A real black guy didn’t win.” A year later, I now can say for sure . . . yes he did.

But it wasn’t without a lot of growth and struggle. Growing up, lacking the melanin to display the race of my mother and beloved grandmother to the world, I had to incorporate an aspect of performance to express my blackness. Unfortunately, with little guidance from the two to four black kids in my school, who were similarly confused, all I could discover was that being black somehow equals being “less than,” while whiteness equals “greater than.” As one black student in my class would remind me, black people are the ones who don’t call a towel a towel, we call it a “rag”; we don’t use cutlery because we pick up our chicken when we eat it; we are more prone to commit crimes, more likely to be angry, and loud. I was mis-educated to believe that to really be black meant to purposefully act as a lesser form of Western human.

Feeling that blacks were to be “less than” made me resentful, a resentment amplified by white society’s unspoken expectations that, as a white-skinned person, I was entitled to be taking full advantage of what was “greater than.” But I sure didn’t feel “greater than.” I hated my skin color for its arrogance, and as a child, I fantasized about magically turning the white people into the “less thans,” all by myself. The world was still broken, and my young mind could not comprehend it.

It was by entering environments in which I could befriend a diverse array of talented, passionate, brilliant black people that my paradigms of blackness began to shift away from lamenting inferiority, towards emphasizing greatness. One of the first places that helped me do this was the Ujamaa dorm at Stanford University –a dorm in which 50% of the residents were black, where the “minority” became the majority, a place for community, empowerment, and unparalleled intellectual discourse.

Ujamaa took me part way down the road towards racial rejuvenation, but to my surprise, it took Harvard Law School of all places to make my journey complete.

As a 1L, I was not in the best place spiritually and emotionally. But I did what I could for BLSA, because I knew how important the black community had been to me in undergrad. Then, to my surprise, our last 2 presidents, Shaylyn and Reese, asked for me to serve as BLSA Secretary for my 2L year. To feel needed by them, by BLSA, gave me just a little extra spark of life.

Ironically, by increasing my leadership role in this black organization, I finally began to see life as less black and white. My white fingers were typing a very black newsletter, and forcing myself to act as “less than” was nowhere to be found in my BLSA Secretary job description.

By March of last year, I found myself, again at Reese’s suggestion, running for HBLSA President. The day after I won, I remember walking in front of the library, and seeing one of our BLSA members, a girl who was not one to mince words. She looked at me and said, “You look different! In a good way.”

I was a bit confused. I hadn’t gotten a new fade. I hadn’t gotten a tan, although I was planning on it. I wasn’t even wearing new kicks.

And then it hit me – I was standing up straight. For the first time I could recall, my shoulders were facing the sky instead of the ground. My eyes focused on the road ahead of me instead of on my shoelaces. What this girl noticed was a man walking on earth who, for the first time, felt like he belonged there. Not just because I was President. But because I was Black and no one could tell me I wasn’t. And I didn’t get to be “Black” by being “less than” – no, I got there by doing the absolute best that I could!

The tragic irony of this is not lost on me – the blackness that now makes me stand up straight is the same blackness that has been misappropriated to weigh down the shoulders of African-Americans for centuries. For so long, we as black people have tended to empower everyone else’s vision of what ourselves should be. But we can dream so much higher on our own.

That’s what we have tried to do in BLSA this year. This year, we in Harvard BLSA have asked: Why meet just one Supreme Court Justice when we can meet two? Why just summer in Martha’s Vineyard, when we can also winter in Sunday River, Maine? Why eat pizza when we can have lobster mac & cheese? Why go to the club dry when we can buy a bottle? And why have a conference where black people worry amongst themselves about community problems, when we can have a conference that shows the entire HLS student body that we are the best organization on campus in spite of these problems?? How’s that for your racial entitlement!

For the officers and myself, HBLSA’s goal this year has been to encourage a positive standard of blackness, so that when we think about our own blackness, we ALL stand up straight, and tall, and strong, the crowns of our heads pointed towards the heavens.

The power you will feel from doing so is second to none. And the first few months I was BLSA president, I craved empowerment so much that I insisted on signing every email “BLSA Power,” a change from the normal closing, “BLSA Love.” BLSA Love was too weak, anyway, I thought.

But as the months progressed, and BLSA members truly became my family members, it became clear that love, the greatest power of them all, was the only word that could describe the energy I felt from all of you. When Anisha would organize exam prayer circles; when 1Ls Victoria and Jaimie would take the lead in organizing community service events; when 4-year-old Lynette would make an outburst during a meeting and everyone would laugh; when 25-year-old Mondaire would make an outburst during a meeting and everyone would laugh; when Julian would organize “Brotha’s Lunches” on Fridays in the Hark. All that wasn’t just power – that was love.

I recently heard a quote from a man named Panache Desai, who says, “we are put in exactly the place we need to be, to love the people that we are around.” Indeed, I do believe that in some way, all our work here—our classes, our student groups, even this conference – has merely been a front, for all of us to be around each other, and to love one another. Now, I am proud to say to the members of the Harvard Black Law Students Association, that, in the words of the great Donny Hathaway – I love you more than you’ll ever know.

And with BLSA love, I thank you all.


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Unmasked Reflections of An Asian American Attorney-Author

Harvey Gee[1]

In Mascaras, Trenzas, Y Grenas: Unmasking the Self While Un/Braiding Latina Stories and Legal Discourse[2] (“Unmasking”) Margaret Montoya provides an insightful account of her experiences as the first Latina student at Harvard Law School.  Through her self-reflection of being a Latina law student negotiating the predominately white culture at Harvard, Montoya ties together the personal, social, and political dimensions of racial identity.  Her biography supports the ideal that racial identity, though influenced greatly by society as a whole, remains a personal choice. By succeeding in negotiating the color-line, she demonstrates that it is certainly possible to debunk the myth of the necessity to fully assimilate into the American mainstream in order to succeed.  In particular, she focuses on resisting the cultural assimilation that often comes with higher education.[3]

The first time I read Montoya’s essay was in my Critical Jurisprudence course taught by Professors Amy Kasteley and Yvonne Cherena-Pacheco during my second year at St. Mary’s School of Law.  I thought the essay was insightful and provocative.  Before Unmasking, there was little storytelling in legal scholarship.  Montoya published her piece at a time that Critical Race Theory, which challenges the beliefs in “color-blindness,” was only beginning to gain traction.  Even before the emergence of LatCrit,[4]  Montoya use storytelling to challenge traditional legal discourse from a Latina perspective.  Essentially, Montoya asserts that various masks are used to control how people respond to racial minorities/outsiders, and in turn, these masks are tools in racial subordination.[5]

In this brief essay, I reflect back to the first time I read Unmasking as a law student sixteen years ago and how the teachings of Montoya’s article remain relevant to me today a criminal defense attorney and writer.  The essay also broadens Unmasking’s primary points to demonstrate that civil rights and social justice are a universal cause shared by many outsider groups.

Throughout Unmasking, Montoya cites to her own examples as a law student when she felt the social pressure to assimilate.[6]  She noticed that she went though an acculturation process that could have been measured with her change in dress style: from wearing a Mexican peasant blouse and cutoff jeans on the first day of orientation to dressing like a lawyer.[7]  In her view, this was an example of her assimilation into the dominant culture, which many Latinos are encouraged to do by parents.[8]  But Montoya warns that in doing so, these practices of cultural assimilation serve as a mask for Latina/os to hide behind.[9]

Montoya’s life story, though Latina-centered, resonated with my own personal story as an Asian American.  My parents came to this country from China with little money, seeking a better life for themselves.  Once my parents arrived in San Francisco, and until their retirement, my father worked as a cook, and my mother worked as a seamstress.  While working long hours, living on meager wages, and facing other challenges, they managed to raise four children who were able to complete their educations.

In reading (and rereading) Unmasking, I gleaned many similarities, and some differences, between my law school experience and hers.  To begin, Montoya discuses her memories from law school including reading People of the State of California v. Josefina Chavez[10] in her criminal law class. Her professor was focused solely on the legal issue—whether the baby had been born alive for purpose of the California manslaughter statute—and ignored the other important facts in the case such as the defendant’s youth, her poverty, her fear about the pregnancy, and her delivery in silence.  Unfortunately, this is the norm with black-letter and traditional case analysis, which often downplays the important historical, social, and political context of the case facts.

I witnessed this first-hand during my first year in a criminal procedure class when my professor was discussing the Fourth Amendment and search and seizure, and made a passing reference to Wong Sun v. United States[11] which was a key United States Supreme Court opinion that for the first time applied the “fruits of the poisonous tree” doctrine to statements that were the product of an illegal search, and not just to physical evidence.  It was part of the Supreme Court’s criminal procedure revolution during the 1960s.[12]  Remarkably, despite its lasting legal significance, it is a case that my professor only briefly discussed for its holding.  Because of the cursory mention of the case, most of the other students did not realize that it was a fascinating mid-century snapshot of American attitudes toward Asian Americans in general, and toward the Chinese drug gangs that plagued San Francisco in particular.  Presently, this lack of attention paid to Asian Americans and criminal justice is also reflected in historical studies of racial discrimination in the administration of justice, which tends to focus on African Americans and Latinos, with less attention paid to Asian Americans.

Next, I also agree with Montoya’s repeated theme that the balancing of two cultures does not have to be an insolating, individualistic, or secretive process that alienates outsiders from families or their communities. I think I have been able to strike a balance by being able to function in white, mainstream America while being able to stay true to myself while in Asian communities.  But there are some points that Montoya makes that I disagree with.  For example, Montoya states that some students are attracted to the profession because they want to disguise themselves and have no desire or need to look for their hidden selves.  She also notes that some students might resent the role-playing that is necessary of them to succeed in their studies and in their relations with professionals and peers.  But what of students like me who did not necessarily fit into either category?  Such students are not denying their identity, because they know their inner-selves, and are not against role-playing.  They genuinely enjoy the law school experience and enjoy the community of professors and classmates.

Upon reflection, as a seemingly self-aware Asian American, I believe my own personal interests guided my research pursuits during law school.  St. Mary’s, with its commitment to social justice and its history of taking a special interest in minorities, especially Hispanics,[13] was also a tremendously supportive environment for me to further grow as a person.  As an active member of the Asian-Pacific American Law Student Association (“APALSA”) who was also involved in other extracurricular activities, I was particularly aware that St. Mary’s did not have any Asian American faculty at the time.  This is not surprising since there are few Asian American law professors, and even fewer female Asian American law professors.[14]  Asian Americans are also less actively recruited by law school faculties compared to African Americans and Hispanics.[15] But when Asian Americans are appointed to the legal academy, they have an opportunity to write about issues impacting Asian Americans, which have been largely ignored by mainstream academics and courts.  This observation served as the seed for my writing.

In fact, when I became a member of the St. Mary’s Law Journal, I realized that I had no interest in producing mainstream scholarship.  At the same time, I noticed that most, if not all, of the articles selected for publication were pieces that were not race- or public interest-related.   Sure, there may have been an occasional article about affirmative action, but for the most part, the articles addressed issues such as professional responsibility, evidence, contracts, torts, or oil and gas.  Montoya seems to agree.  She suggests that the contexalization of facts through the use of gender-linked/cultural information broadens the understanding of legal issues.[16]  Montoya adds that raising questions about gender, class, and ethnicity runs counter to traditional legal discourse.  But it is necessary to do so, since Montoya notes that without outsider perspectives, most of the discussion would be among professors and students who shared common life experiences.  Perhaps this ideal partly explains my own motivation in writing.

I drew upon my background when I was a member of the St. Mary’s Law Journal and wrote Changing Landscapes: The Need for Asian Americans to be Included in the Affirmative Action Debate[17] (“Changing Landscapes”), my first law review piece about Asian Americans and affirmative action. That piece was written under the dark shadows of the Fifth Circuit’s Hopwood v. Texas decision[18] and passage of the 1996 California Civil Rights Initiative.  Both of these legal setbacks to racial progress occurred in states where I had lived. California was my home state, and I moved to Texas to start law school.  This was an eye-opening experience for me as a native San Franciscan, since I lived in a city where Chinese Americans constituted the largest racial minority group, and where liberal politics permeated from the Richmond District though the Mission District, and to the Castro.  I then moved to San Antonio, where Hispanics are the largest minority, and where conservatism governs.

During research for Changing Landscapes, I stumbled upon other Asian American issues that I felt needed to be addressed or at least have attention paid to them. In my second article, Beyond Black and White: Selected Writings By Asian Americans Within the Critical Race Theory,[19] I analyzed the place of the then emerging scholarship by Asian Americans in the Critical Race Theory genre. As a racial minority group that has been historically discriminated against, Asian Americans have sought to challenge, through legal scholarship and Critical Race Theory, the traditional legal discourse that has often glossed over Asian American issues.

In later sections of Unmasking, Montoya talks about the pressures that Harvard students felt to assimilate as law students to pursue traditional legal career paths, including securing associate positions in large law firms.  In my case, I never really felt such pressure, and strived to be true to myself.  With regards to career choice, I was always interested in criminal law and focused on a public interest law career.  This interest was cemented when I interned at the San Francisco Public Defenders Office and was a Student Attorney at the Civil Justice Clinic.  Third-year law students in the Clinic represent homeless and other indigent clients in a variety of civil cases, including benefits, estates, and family matters.  There, I was fortunate to gain great practical experience.  In one case, I represented a teenage mother struggling to retain custody of her child after the child’s father petitioned for custody in an effort to resist the Attorney General’s attempt to collect child support.  In another case, I represented a client at his administrative hearing following the social security administration’s denial of his benefits. These cases were tremendous learning experiences for me.

As I recall, as a law student, unlike a number of my classmates, I did not dramatically change my style in clothes or alter my reading habits or social activities.  However, some of my classmates who never had professional jobs before or came from border towns may have experienced some adjustments in getting used to engaging with “insider” law students, law professors, attorneys, and judges at law school social functions.  Sometimes race did matter.  During some social activities, I also recall many times that African American and Hispanic students would find comfort in confiding in me their benign social commentary about whites, just as whites would do the same about African American and Hispanics.  Perhaps it was an example of how an Asian American, while an outsider, was able to negotiate the color-line in ways that other racial groups could not (or at least in different ways).

Though Montoya does not mention it, masking is not restricted to racial assimilation.  In Covering: The Hidden Assault on Our Civil Rights,[20] Kenji Yoshino writes about the pressure he faced to “cover” his homosexuality at Yale Law School because his sexual orientation had not yet gained acceptance in the field of law. [21]  In his book, Yoshino walks the reader through his own process of coming to terms with his racial and sexual identity. He first sought to become straight, remaining open to the concept of conversion, and then accepted his homosexuality, but concealed it from others.[22]  Eventually, Yoshino had to decide whether to conceal his sexuality from others or to be openly gay.[23]  As a Yale law student, he found a mentor in an openly gay professor who did not cover his sexual orientation and gained acclaim and recognition for his writings on gay legal issues.[24]  Inspired by his mentor, Yoshino rejected conversion, though he initially tried to hide his sexual identity from his classmates.

Fast forward: as an attorney today, who is still resisting any forced cultural assimilation, I believe that law students who may be unsure about what path to take with regard to their legal career do not have make a choice between being a legal academic,  activist, or a practicing attorney.  Personally, I feel that I have been fortunate to combine most of these things as an attorney-activist-writer.  As a first-generation American and attorney, I have always felt compelled, and somewhat obligated, to advocate on behalf of underserved populations in court and through legal scholarship.  I have managed to blend my personal interests with my practical expertise to bring unique knowledge and insight to my scholarship, which is focused on civil rights and related public interest topics.

I am especially proud of my scholarship about Asian Americans, since I feel that I have brought new perspectives to the literature.  My life experience as an Asian American has informed my writings, which reflect empathy for immigrants and awareness of Asian American history.  For instance, at varying times, I have experienced most of the core social issues that affect Asian Americans in assimilating into the American culture, including the stereotypical portrait of Asian Americans as perpetual foreigners.  Like many perceived outsiders, I am often asked, “Where are you from?  Sometimes it is a general question about where I was raised, and not about my race.  Other times, the question is asked out of curiosity about my ethnic background.  Sometimes it is asked by other Asians, and sometimes it is asked by non-Asians.  When it is asked out of curiosity about my ethnicity, I have often wondered why whites or African Americans are not asked similar questions about their racial background, and whether my six nieces and nephews, and their children, will encounter the perpetual foreigner experience throughout their lifetimes.  Even NBA basketball player Jeremy Lin, the first Asian American to achieve basketball stardom, has not been free from racist and offensive stereotyping. [25]  The only thing that Lin did to capture America’s attention was to play great basketball.  Apparently, in Lin’s case, skin color alone is enough of an instigator to provoke such comments.

Here, a broader perspective is possible.  The perpetual foreigner stereotypes coexist with other stereotypes of Asian Americans, which are facilitated by the media.  Historically, Asian women have been objectified, primarily by white males, as exotic “orientals,” “dragon ladies,” or chaste “lotus blossoms,” [26] while Asian Americans males have been underrepresented in film due to the belief that they are too ethnic looking for white audiences.[27]  But when they do appear on screen, Asian American male actors appearing in television, movies, and magazines have stereotypically been portrayed as one-dimensional fumbling geeks, conniving villains/gangsters, or martial artists. [28] Asian males are not perceived as potential romantic leads, either. For example, when was the last time there has been a romance depicted involving an Asian male on television? We have seen Asian American women coupled with white men, but we infrequently see an Asian American male and white (or non-Asian) female couple on television. Today, the quantity of television and film roles for Asian American men have not increased, but the quality of the roles has. In film, Daniel Dae Kim appears weekly on television in Hawaii 5-O as does Harry Shum, Jr. in Glee. John Cho is known for his role as “Harold Lee” in the Harold & Kumar films and “Hikaru Sulu” in the Star Trek movie sequel, and Sung Sang appeared in the Fast & Furious movies and with Sylvester Stallone in the recently released film, Bullet to the Head.

If nothing else, through my writings, I feel as though I have brought a much-needed perspective to immigration cases and issues about bilingual education and bilingual ballots that may have an adverse impact on the Asian American community, and other immigrant communities.  Similarly, in the criminal context, I have written about how Asian Americans are often overlooked in the criminal law literature despite their contributions to legal history and contemporary conversations about crime policy.  These articles reflect my experience in criminal defense as well as my cultural competence in understanding the legal and cultural representation of Asian Americans in criminal matters.  Judging by the citations to my law review articles and editorials by leading academics who promote criminal justice reform, and by public interest advocates in Supreme Court litigation and State Defender Offices in state criminal appeals, I feel I have accomplished a great amount by contributing to debates about important and sometimes delicate legal issues of great concern to minority communities.

Writing elsewhere, Montoya asserts that legal scholarship and law practice are not mutually exclusive, but rather their intense collaboration “is a prerequisite to bringing about effective social change.”[29]  In fact, they work in tandem and help each other.  Attorneys can refer to outsider scholarship or the social science literature to advocate on behalf of their clients.  Here are two examples of this. First, as a practical matter, analyzing Asian Americans in their appropriate socio-historical-political context, in criminal cases, illustrates how racial justice does not exist in an exclusively black/white paradigm and that culture can be both an effective and ineffective tool in any criminal defense strategy. We should be aware of how non-Asians perceive Asians and vice versa. Moreover, we should realize that Asian Americans are not one monolithic group, but rather a population consisting of diverse cultures with differing religious beliefs, values, customs, and patterns and norms of behavior. Since cultural awareness can influence jurors and judges, all legal stakeholders in the criminal justice system should move beyond stereotypes toward becoming more culturally aware. Perhaps the first step is to acknowledge that racial and cultural differences exist and to be open-minded in considering all relevant cultural factors and circumstances to ensure justice for all.

Second, Critical Race Theory and Asian American Legal Scholarship have also changed the direction of the affirmative action debate, while simultaneously demonstrating the connection between legal theory and litigation practice, by placing the issue in the proper historical/social/political context.  In my view, properly designed and implemented affirmative action programs are a constitutionally valid tool to remedy past discrimination, stop present discrimination, and prevent further discrimination.[30] Affirmative action opens doors that have been historically closed for women, racial minorities, and the disabled. [31]  Diversity in a student body and in the workplace promotes cross-racial understanding that helps to break down racial stereotypes, and it assists in cultivating leaders with legitimacy.  Affirmative action addresses disparities in education, the criminal justice system, health care, employment, wealth, and structural inequality.

Affirmative action has never been a purely black/white issue—all racial minorities, and individuals from disadvantaged socio-economic backgrounds, should benefit.  When Asian Americans and other non-whites are included in the debate, the validity of affirmative action becomes even clearer.  The model minority myth has created a stereotype of Asian Americans as one monolithic ethnic group that has achieved success though education and hard work without the assistance of governmental benefits.[32]   Such a myth is disingenuous, and masks the reality that Asian Americans are still affected by discrimination. It also obfuscates the fact that Asian Americans are still in need of affirmative action, and it is often used by opponents of affirmative action to show that affirmative action is not needed to help minorities.  But to share the view of those who seek to abolish affirmative action would be agreeing to maintain an oppressive racial hierarchy, and it would enable subordination.

Behind the facade that Asian Americans are a successful minority group and that Asian Americans are succeeding at university campuses across the country, lies the fact that Asian Americans are the victims of past and present hostility and discrimination.[33]  The reality of Asian American progress towards racial equality reveals the existence of substantial discriminatory obstacles in the areas of employment and education.  Though Asian Americans in the aggregate have done well in higher education, certain Asian American groups still need some type of assistance.  Further, including Asian Americans in the debate also weakens claims of so-called “reverse discrimination” because no single racial group is harmed disproportionately.  Yet, some lawyers sometimes still do not understand affirmative action.  I recall a conversation I had a few years ago with a friend, who is white, about affirmative action.  After talking about our individual upbringings, he was of the belief that that he and I were born on a level playing field and had the same advantages and social mobility in life.  He also believed that Asian Americans and whites are similarly situated, and that these two racial groups do not generally face any societal discrimination.  Unfortunately, despite my responses and best efforts, he could not be persuaded otherwise.

In short, I believe that most of the teachings of Montoya’s piece were as powerful to me when I first read it as they are today.  I am grateful to Montoya for writing an insightful narrative that says a great deal about the complexities of race relations in this country, and how outsiders must be true to themselves and avoid succumbing to societal pressures to conform.  I am also pleased that I have been able to follow the course I charted as a law student.  As an outsider my entire life, and now living as an unmasked Asian American man and serving as an attorney at the Federal Defenders of the Middle District of Georgia, Inc., I have the honor and privilege to compassionately, ethically, and zealously represent indigent outsiders who are accused of federal crimes in different phases of criminal proceedings in federal district court and courts of appeals.  I handle a wide range of cases including felonies, misdemeanors, appeals and non-capital habeas matters.  The nature of these cases require me to be creative in making legal arguments, planning investigations, and crafting trial and appellate advocacy.  Importantly, my cases affect individuals who have few options. As such, my work is client-centered.  My clients are some of the most vulnerable members of the community who often have mental health issues, substance abuse problems, and suffer from educational deficits.  Part of the challenge of my job is asking my clients difficult questions, making difficult decisions, and taking calculated risks in providing my clients with the best representation possible, and in seeking social justice.  I do all of these things without a mask.

I close my essay with some recommendations based on my experiences as a St. Mary’s law student, and now as a Public Defender: there should be an expansion of the focus of racially equitable justice reform.  As a student, many of classmates were Hispanic, and presently, most of my clients are African American.  Through these experiences, I have witnessed the similarities that these groups share with Asian Americans, and believe that these similarities are important in building coalitions and alliances with political and social groups and movements in shared collective efforts for justice.  At the grassroots level, and with community organizing, there is a tremendous opportunity to discuss the possibility of coalition building despite the cultural and class differences and potential conflicts and impediments that could arise.[34]   For instance, African Americans have been concerned with the perceived negative effects of immigration on their community, and poor and working class African Americans worry about competition for low-skilled jobs.[35]  In higher education, Asian Americans might believe that they compete against African Americans and Latinos for admission slots.[36]    Yet collectively, African Americans, Latinos, and Asians are targets for racial profiling and subjects of the criminal justice system.[37]  Since racial justice is a universal cause, lessons can be learned from the litigation in other civil rights cases and contexts.  Just as African American, Latino, and Asian American civil rights groups have joined together to preserve affirmative action,[38] and advocate for same-sex marriage[39] and immigration reform, they can also form coalitions in the struggle for criminal justice reform.[40]  Similarly, at the highest levels of government, I believe that President Obama, who is continuing to diversify the federal bench, should take a more public and defined position supporting affirmative action, since it is a continuation of the civil rights movement.  This should be followed up with a project to develop an initiative by the Obama Administration to robustly support affirmative action and encourage an embrace of diversity.  The initiative would be timely because we need to renew a much needed dialogue on race relations in an America that is far from being “post-racial.” By using the blueprint offered by Montoya’s Unmasking, Americans can make meaningful efforts towards achieving racial and social justice.

[1] Attorney, Federal Defenders of the Middle District of Georgia, Inc.; U.S. Supreme Court Fellows Program finalist in 2012. The views expressed herein are not necessarily attributed to any past, present, or future employers.

[2] Margaret Montoya, Mascaras, Trenzas, Y Grenas: Unmasking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L.J. 185 (1994).

[3] Id.

[4] See Margaret E. Montoya & Francisco Valdes, “Latina/s/os” and the Latina/o Legal Studies: A Critical and Self-Critical Review of LatCrit Theory and Legal Models of Knowledge Production, Fla. Int’l U. L, Rev. 187, 192 (2008).

[5] Id. at 197.

[6] Id. at 185.

[7] Id. at 191.

[8] Id. at 193.

[9] Id. at 194.

[10] People v. Chavez, 77 Cal. App. 2d 621 (1947).

[11] 371 U.S. 471, 487-88 (1963).

[12] See Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court’s Rule in the Criminal Procedure Revolution, 152 U. Pa. L. Rev. 1361, 1365 (2004).

[13] See Kevin R. Johnson, Dedication of “The Scholar: St. Mary’s Law Review of Minority Issues,” St. Mary’s L. Rev. of Minority Issues 1, 2 (1999).

[14]  See Pat K. Chew, Asian Americans in the Legal Academy: An Empirical and Narrative Profile, 3 Asian L.J. 7, 8, 37 (1996); Shawn Ho, Co-Synthesis of Dynamics Behind the Dearth of Asian American Law Professors: A Unique Narrative, 18 Asian Am. L.J. 57, 57 (2011).

[15] See Alfred C. Yen, A Statistical Analysis of Asian Americans and the Affirmative Action Hiring of Law Faculty, 3 Asian L.J. 39, 41 (1996); see also Vikram David Amar & Kevin R. Johnson, Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools, FindLaw Writ (Apr. 9, 2010), http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/amar/20100409.html (“Asian Americans may face the stereotype that they are too passive or lack strong social skills to do well in the classroom.”).

[16] Montoya, supra note 2, at 217 (1994).

[17] See Harvey Gee, Changing Landscapes: The Need for Asian Americans to be Included in the Affirmative Action Debate, 32 Gonz. L. Rev. 621 (1997).

[18] 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003), as recognized in Bourdais v. New Orleans, 485 F.3d 294 (5th Cir. 2007).

[19] See Harvey Gee, Beyond Black and White: Selected Writings By Asian Americans Within the Critical Race Theory, 30 St. Mary’s L. J. 759 (1999).

[20]  See Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (2006).

[21]  Id. at 88-89.

[22]  Id. at 20.

[23]  Id. at 18.

[24]  Id. at 13-18.

[25] See Timothy Yu, Will Jeremy Lin’s Success End Stereotypes?, CNN, Feb. 21, 2012, http://www.cnn.com/2012/02/20/opinion/yu-jeremy-lin/index.html.

[26] See Keith Aoki, Is Chan Still Missing? An Essay About the Film on Cedars and Representation of Asian Americans in U.S. Films, 7 UCLA Asian Pac. L.J. 30, 35 (2001). See also Rhonda J. Yen, Racial Stereotyping of Asians and Asian Americans and its Effect on Criminal Justice: A Reflection on The Wayne Lo Case, 7 Asian L.J. 1, 8 (2000).

[27] See The Slanted Screen (Asian American Media Mafia 2006).

[28] See Tan Pham, Unseen Yellow, 7 How. Scroll Soc. Just. L. Rev. 1, 19 (2004).

[29] See Margaret E. Montoya, Of “Subtle Prejudices,” White Supremacy, and Affirmative Action: A Reply to Paul Butler, 68 U. Colo. L. Rev. 891, 930 (1997).

[30] See Carl E. Brody Jr., A Historical Review of Affirmative Action and the Interpretation of Its Legislative Intent By the Supreme Court, 29 Akron L. Rev. 291, 310 (1996).

[31] See K.G. Jan Pillai, Affirmative Action: In Search of a National Policy, 2 Temp. Pol. & Civ. Rts. L. Rev. 1, 2 (1992).

[32] See Elaine Woo, UCLA Denies Any Policy of Limiting Asian Admissions, L.A. Times, Nov. 19, 1988, at 1 (reporting that university official denied setting limits on Asian American enrollment); see also Emil Guillermo, Are Asian-Americans the New Jews?, San Diego Union-Trib., July 8, 1996, at B7 (dispelling Asian American stereotypes and discussing need for affirmative action programs).

[33] See Selena Dong, Note, “Too Many Asians”: The Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative Action, 47 Stan. L. Rev. 1027, 1048 (1995) (discussing past discrimination against Asian Americans and their eligibility for inclusion in affirmative action programs); Theodore Hsien Wang, Swallowing Bitterness: The Impact of the California Civil Rights Initiative on Asian Pacific Americans, 95 Ann. Surv. Am. L. 463, 463 (1995) (discussing lack of attention paid to how Asian Americans have benefited from affirmative action); Dana Y. Takagi, The Retreat From Race: Asian American Admissions and Racial Politics 150-53 (1992) (discussing the reexamination of admissions policies by major universities following allegations of discrimination against Asian Americans); Grace W. Tsuang, Note, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 Yale L.J. 659, 659 (1989) (discussing legal basis for claim by Asian American applicants denied admission to universities due to upper limit quotas); Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 39-40 (1996) (describing maximum enrollment quotas placed on high-achieving Asian Americans as a result of over-representation).

[34]  See e.g., Kevin R. Johnson, The Struggle for Civil Rights: The Need For, and Impediments To, Political Coalitions Among the Within Minority Groups, 63 LA. L. Rev. 759, 780 (2003); Karla Mark McKanders, Black and Brown Coalition Building During the “Post-Racial” Obama Era, 29 St. Louis U. Pub. L. Rev. 473, 487-88 (2010); Raul Carnevali, Multiculturalism: A Challenge for Modern Criminal Justice: A Latin American Perspective, 47 No. 2 Crim. Law. Bulletin Art. 5 (2011); Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform, 7 Stan. L. & Pol’y Rev. 35, 52-53 (1996) (describing potential political conflicts between African Americans, Asian Americans, and Latinos on issues, including affirmative action and immigration).

[35]  See Kevin R. Johnson, The Case for African American and Latina/o Cooperation in Challenging Racial Profiling in Law Enforcement, 55 Fla. L. Rev. 341, 360 (2003).

[36]  See Gee, supra note 17, at 627; Rachel F. Moran, What If Latinos Really Mattered in the Public Policy Debate?, 85 Cal. L. Rev. 1315, 1326 (1997).

[37]  See Johnson, supra note 35, at 371.

[38]  Parents Involved in Cmty. Schs v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003).

[39]  Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).

[40] See, e.g., Gentry v. Super. Ct. of L.A. County, 165 P.3d 556 (Cal. 2007); Strauss v. Horton, 207 P.3d 48 (Cal. 2009). See also Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as “Foreigners,” and Social Change: Is Law the Way to Go?, 76 Or. L. Rev. 347, 357 (1997) (“Asian Americans and Latinos have many common grievances.  Political strategies and mutual efforts to combat those common evils and construct a more inclusive nation, which accords full membership rights to all rather than simply those who fit the Anglo norm, would benefit both groups.”).


Gendered (In)security

By Pooja Gehi

Over the past decade, both immigrant rights and lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights have been key issues in United States political and legal debates.  Yet, the two issue areas have rarely publicly intersected within these debates.  The "war on terror" has heightened the public debate around immigration, national security, and border control; however, LGBTQ concerns and a discussion of LGBTQ immigrants continue to be rhetorically separate from these immigration-focused conversations.  This rhetorical separation is especially problematic for those living at the intersections of different identities, including LGBTQ immigrants of color who live in poverty.  As this Article will show, the separation ignores the ways in which individuals who do not fit the public description put forth by "rights-based" organizations are the most negatively impacted by the laws and regulations that are being publicly challenged by these mainstream groups.

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Book Review: Gender and Culture at the Limit of Rights

A student review of Gender and Culture at the Limit of Rights, edited by Dorothy Hodgson.

Philadelphia, PA.  University of Pennsylvania Press (2011). 312 pages. 

Review by: Brooke Willig*

Click here to access a PDF version of the book review.

Drawing on diverse case studies from the United States, Africa, Latin America, and Asia, Dorothy Hodgson’s anthology Gender and Culture at the Limit of Rights seeks to expose many of the assumptions and implications underlying the current clamor for “women’s rights a[s] human rights.”[1]  A critical look at how rights-based frameworks incorporate and transform local gender relations, the book frames itself around global understandings of “gender,” “culture,” and “rights.”  Despite the anthology’s perhaps overly ambitious aims, the contributors successfully prevent the work from devolving into vagueness and generalities through close readings of specific cultural moments and skillful evocations of pivotal motifs.  Each author employs a different methodology and perspective—from analysis of historical images[2] to close reading of one female politician’s radio interview[3] to recollections of personal interactions with rural Egyptians[4]—but the anthology coalesces around shared concerns for the over-valuation of human rights frameworks as a means of advancing women’s rights.  The anthology’s breadth and evenhandedness, however, force it to fall short of the promise of its introduction; though the contributors derive valuable insights from their portraits of global gender relations, they fail to synthesize these insights to draw out major themes or answer serious questions Hodgson originally sets out.  That each piece largely pursues its own agenda seems in fact to be a product of the anthology’s most coherent and emphasized theme: the primacy of expression and need for individualized discourses in gender struggles.  This commitment, both stylistic and substantive, to the “complexity of . . . subjectivit[y]”[5] may well carry important implications for the role of human rights in gender justice, but ultimately keeps the work from delivering a central or formative message on the subject.

To examine the potential and limitations of the “women's rights are human rights” strategy, the book’s contributors look specifically at the way rights-based protocols have been analyzed, deployed, and legislated to create particular visions of gender in divergent historical and geographical settings.  Hodgson constructs an ambitious framework in which to situate these examinations.  In “Part I: Images and Interventions,” she asks contributors to “examine the discursive power of certain gendered assumptions and ideologies in the formulation and implementation of human rights”[6] as they evaluate the promulgation and use of specific cultural representations of women.  “Part II: Travels and Translations” seeks to show “how the production and circulation of human rights discourses have been engaged, appropriated, challenged and reworked in different communities”[7] by compiling essays on the “vernacularization”[8] of human rights and the direct effects of human rights work on local communities.  Last, “Part III: Mobilizations and Mediations” invites the reader to compare “distinct gendered experiences, expressions, and mobilizations of rights.”[9]

The essays expose fundamental flaws in human rights interventionism with especial repercussions for women.  For example, as Pamela Scully notes, the “practice of human rights is burdened by a colonialist understanding of culture that smuggles ideas of backwardness and savagery”[10] and that “tends to register this backwardness through gender,”[11] as shown by the pivotal role that the image of the suffering African women played in motivating the first transnational humanitarianism movement.[12]  Human rights work can thus make double victims out of women: it first inspires many home cultures to objectify and regulate women, as they seek to counter its western influence by idealizing women as pure embodiments of traditional culture and “private” objects, beyond the reach of a liberal democratic movement that separates state intervention and private life.  Salma Maoulidi, for instance, shows how “any intervention involving women becomes a key concern of those in power”[13] in Zanzibar, who then “insist on a disparate treatment for women [in such forms as modesty and marriage restrictions, in order] . . . to preserve their . . . personality as a people.”[14]  Second, humanitarian intervention allows humanitarians themselves to objectify women by treating them as embodiments of a repressive culture, emblematic victims rather than self-constructed individuals who may reasonably wish to maintain “savage” cultural practices like circumcision or polygyny.[15]

The anthology exposes as a second flaw in the human rights movement its activists’ equation of development of human rights with progress for women, suggesting instead that practices deemed human rights violations by outsiders may in fact serve to empower or enable women locally.  Both Scully and Hodgson notably question the vociferous opposition to female genital cutting, positing that forbidding women to teach the custom may significantly undercut the role of female elders in African society and thereby reduce women’s overall ability to aggregate status and power. [16]  Maoulidi similarly problematizes the much-decried use of early or arranged marriages, showing how Zanzibari families defensively used such unions to forestall hostile, politically-mandated intermarriages and consequent familial ruin.[17]  The anthology also gestures at the possibility that humanitarian aid may conversely hinder gender justice.  For instance, while admitting that humanitarian intervention served to create greater space for women to develop and express their rights, Caroline Yezer highlights the significant emasculating consequences of the de-militarization of rural Peru, which, in turn, inspired widespread nostalgia and appetite for the troubling authoritarianism and traditional gendering of the pre-conflict state.[18]

More fundamentally, the contributors expose the gender bias in human rights’ structural privileging of the public over the private sphere.  As has long been documented, the success of women’s rights requires intrusion into a private sphere to which women have been subordinated. Yet current rights frameworks provide inadequate state-run mechanisms to compel private actors to enter civil society.[19]  The human rights movement’s total reliance on states to negotiate, implement, and enforce rights then poses a heightened danger for women, whose domestic isolation often forces them to face sexual violence and political inequality without legal recourse.  At the same time, the essays remind us, the human rights movement retains a necessarily transnationalist grounding, which treats the development of national laws and rights as a means to international justice rather than an end unto itself.  This approach, however, creates its own problems for women, many of whom fight for women’s rights only to reclaim national and cultural citizenship,[20] and who face additional logistical difficulties in becoming part of a transnational movement.[21]

As it teases out these tensions inherent in “women’s rights a[s] human rights,” the book finds its true strength in the construction and elaboration of subtle motifs through disparate essays.  For one, though Hodgson claims to have concentrated discussion of images in Part I, contributors throughout emphasize specific, vivid portraits of women as a critical means of both interpreting and promulgating women’s rights.  Scully opens the anthology with the most direct indictment of an image, focusing her critique of human rights on its preoccupation with the “figure of the black woman vulnerable to terrible depredations”[22] found in literature and pamphlets, a belittling portrait that Scully argues impelled the abolitionist movement and still impels modern humanitarian intervention against “African patriarchy.”[23]  Hodgson also weighs the potential against the peril inherent in the image of the African woman: she compares the Maassai Women’s Development Organization’s (“MWEDO”) valuable humanitarian efforts with that NGO’s exoticization and misperception of Maasai women, as it literally capitalizes on Maasai female appearance (“they make good photo-ops!”)[24] and fixates on representations of genital mutilation rather than less graphic, if more grave, problems like economic disparity.[25]  Even images created by women themselves in pursuit of gender justice are shown to carry mixed messages: as with Oaxacan women’s self-descriptive rallying cry of “short, fat, and brown, and the face of Oaxaca,”[26] such representations often contain a self-deprecating undertone that mitigates against their progressive purpose.  These recurrent images thus ask the reader to remain critical of even—perhaps especially—those materials meant to inspire gender advocacy and, in so doing, provide a microcosm of the book’s central critique of human rights frameworks: human rights, like the images they rely upon, may circumscribe women’s potential even as they seem to increase it through access to aid and politicization.

More centrally, the essays subtly underscore the primacy of gendered voices.  Grounding their analyses in transcripts of Kenyan women’s radio addresses,[27]  Indian street plays decrying domestic violence,[28] Egyptian campaigns to end harassment through text messages,[29] interviews with women taking over Mexican media,[30] and poetry from a male immigrant detainee, [31] the contributors demonstrate the value of human rights in literally giving voice to the repressed or underrepresented.  Indeed, the authors repeatedly reference the recent case of Jessica Gonzales, who sued the police for failing to enforce a protection order against her estranged husband as he kidnapped and murdered their three children,[32] as a hopeful symbol for the women’s human rights movement.[33]  After state officers and U.S. courts, who purport to recognize human rights, denied relief, Gonzales refused to be silenced and became the first American woman to successfully demand a direct hearing by the Inter-American Commission on Human Rights ("IACHR”).[34]

The contributors’ concern for and reliance on individual voices, however, serves equally to highlight the limitations and suppressive elements of human rights frameworks for gender justice.  For one, Robyn Rodriguez, in her discussion of male immigrant detainees, reveals human rights workers’ reliance on stock narratives emphasizing treaty violations or the individual’s economic contributions to society in crafting rights claims to appeal to public enforcers.  She contends, however, that only by allowing men to refuse these stock narratives and instead make unique, affective claims about their familial obligations and associations will they be able to rebut judicial bias and avoid the injustice of the immigration system.[35]  The human rights movement also stifles expression when NGOs claim to speak for indigenous women’s interests, thereby forcing those women to combat their false representation by both men and activists and to find voice enough to declare that “these are not our priorities.”[36] This struggle is particularly difficult when humanitarians have first provided the terms of gender justice, some of which literally cannot be translated.  Hence, the process of “vernacularization” posited by Levitt and Merry becomes essential:[37] particularly for women with less access to public speech and transnational debate, key human rights discourses must be translated and re-negotiated in local contexts, allowed to arise or adapt organically to native women’s issues rather than imposed wholesale.[38]  Indeed, this vernacularization must be so open as to recognize even the absence of speech as a part of its positive process, as Stephen’s discussions with Oaxacan women remind us that the very concept of speech itself is not gender-neutral, and that the feminization of silence remains a major obstacle in bringing women to the public sphere and women’s rights to the private.[39]  Thus, while organic and progressive speech remains their aim, activists cannot force women speak up when to do so would simply be to impose masculine standards of speech on women.  Activists must also create a visible space for the long-obscured “center-women,” who operate behind the scenes, [40] and encourage these seemingly silent women to influence or control speech, even if they cannot yet produce it.  Only by acknowledging both women’s silence and their local reinterpretations of human rights discourses as valuable “other kinds of leadership,”[41] the book suggests, can human rights workers fully incorporate and promote native women’s interests.

If the book reaches this key analysis through motifs and examples, however, it shows serious fissures in its attempt to directly engage the major terms of debate.  First and foremost, the anthology fails to live up to its claim to truly examine gender rather than women.  LGBT issues pop up only cursorily, with no essay focusing on the framing of sexual orientation through human rights discourses.[42]  Similarly, though Hodgson’s introduction avers that one must understand “the meanings and practices of being a ‘man”” in order to understand those of women,[43] only two essays directly confront the relationship between masculinity and human rights, and even these essays allow their claims about the emasculating effects of humanitarianism[44] or the stigmatization of male homosociality in human rights litigation[45] to go largely undeveloped.  Moreover, though almost every essay concurs that women are used globally to (literally) embody local culture,[46] no contributor addresses why other groups—children, in particular, spring to mind—do not or perhaps cannot serve as additional or alternate cultural centers.

The book also fails to adequately address the inherent gendering of human rights as a concept, focusing instead on how particular human rights discourses hinder or obscure women’s rights in specific cultural contexts.  Though several essays decry human rights’ dependence on the idea of the autonomous, secular male citizen, for instance, they spend little time investigating the basis for that reliance, nor do they suggest whether human rights is theoretically incapable of, or merely averse to, accommodating a communal, religious, and/or female model.  Other fundamental questions are raised and left unanswered by the essays’ look at the basis of humanitarianism: if, as Scully contends, human rights work is necessarily motivated by empathetic concerns for vulnerability,[47] do human rights workers essentially feminize or emasculate those currently without or seeking rights?   Can activists successfully dissociate weakness or victimhood from gender when they consistently label women as the most in need of external intervention?  Moreover, should we nevertheless encourage NGOs to achieve their aims without painting those they help as victims, weak, and in need of rescue, even if they are capable of un-gendering notions of victimhood?  These and other critiques of the essential gendering of humanitarianism linger at the edges of the anthology, playing a weak second fiddle to critiques of its effect on known women’s issues and women’s rights violations like domestic violence, arranged marriages, and women under Islam.[48]

The anthology further falls prey to endemic problems of disaggregation, allowing its essays to evaluate human rights concepts without a shared emphasis or direction.  Indeed, some essays barely use the term “human rights,” looking exclusively at the progression of a women’s issue in a location and merely mentioning in passing that transnational discourses have shaped the local movement.[49]  Only a few essays (namely, those of Scully, Merry, Stephen, and Mary Jane N. Real[50]) consciously build off each other by each directly questioning human rights’ ability to incorporate concerns for gender and culture.  The result is a collection of insights on a topic, rather than a directed investigation into the controlling question the introduction explicitly sets out: how can the intersection of gender and culture reveal the limitations of human rights?  More problematically, this aggregation of disparate insights leaves the work without a clear and cohesive message, even a provisional one.  The authors’ quest to neither “easily celebrate [n]or condemn the current ascendancy of the ‘women’s rights are human rights’ framework”[51] is laudable in its commitment to a thorough and neutral critique, but their deliberate evenhandedness leaves the work’s defining statement as the vague truism that human rights frameworks present both advantages and disadvantages in pursuing gender justice.  Perhaps, given the centrality of such frameworks to the current women’s rights movement, the anthology’s acknowledgment of the difficulties of applying human rights to gender struggles represents a more powerful expression of dissent than its seeming equivocation would lead an unfamiliar reader to believe.  However, one still cannot help but wish these authors would expand, if not strengthen, their critiques beyond acknowledgment of human rights’ imperfection.  If they cannot fully celebrate or condemn the movement, they can still probe more deeply into its first principles to see if its implementation can be successfully modified, or to use the complexity of the issue to craft more definite or nuanced solutions.

Ultimately, then, the book’s strongest message must be found in its unstated yet persistent emphasis on individual, local voices, which can perhaps be elevated to a cautious approbation of culture in effectuating women’s rights and human rights work.  This is, of course, not to suggest that the contributors condone the continuation of oppressive or misogynistic practices in the name of culture, but rather that they repeatedly recognize the significant role played by local culture in the key process of “vernacularization.”[52]  Indeed, if there exists a consistent enemy of the contributors, it is notably not the cultural repressors so vilified by foreign activists, but the activists who seek to impose human rights from the outside, heedlessly trampling culture and local voices in the process.[53]  The lauded prioritization of vernacularization and its interweaving of rights with culture also entail an acceptance of varying directions of gender justice, even if the methods or issues chosen “are not our priorities.”  It seems no coincidence that Hodgson’s own piece takes “These Are Not Our Priorities” as its title, nor that the book and individual essays pointedly refuse to take any stand on what those priorities should be.[54]  Rather, the anthology demands that women and activists maintain only one priority: commitment to enabling women to express and demand their rights—women’s or human—in their local cultures.  Human rights frameworks, the anthology suggests, are most effective and least problematic when used to “create[ ]space for alternative . . . discourses regarding gender identity,”[55] and understood as discourses meant to foster different, original, and organic expression.  In portraying this nuanced and cautiously optimistic vision of the role of human rights discourses in enabling gender justice, Gender and Culture at the Limit of Rights succeeds beautifully.



* J.D. Candidate, Harvard Law School, Class of 2014.


[1] Dorothy L. Hodgson, Introduction to Gender and Culture at the Limit of Rights 1 (Dorothy L. Hodgson, ed., 2011).


[2] See Pamela Scully, Gender, History, and Human Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 17, 20–21.


[3] See Ousseina D. Alidou, Muslim Women, Rights Discourse, and the Media in Kenya, in Gender and Culture at the Limit of Rights, supra note 1, at 180, 180.


[4] See Lila Abu-Lughod, The Active Social Life of “Muslim Women’s Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 101, 114–18.


[5] Robyn M. Rodriguez, Fighting for Fatherhood and Family: Immigrant Detainees’ Struggles for Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 200, 203.


[6] Hodgson, supra note 1, at 6.


[7] Id. at 8.


[8] Id. (quoting Peggy Levitt and Sally Engle Merry, Making Women’s Rights Human Rights in the Vernacular: Navigating the Culture/Rights Divide, in Gender and Culture at the Limit of Rights, supra note 1, at 81).


[9] Id. at  9.


[10] Scully, supra note 2, at 19 (quoting Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 226 (2006)).


[11] Id.


[12] See id. at 20–21.


[13] Salma Maoulidi, Between Law and Culture: Contemplating Rights for Women in Zanzibar, in Gender and Culture at the Limit of Rights, supra note 1, at 32, 33.


[14] Id.


[15] See, e.g., Dorothy L. Hodgson, “These Are Not Our Priorities”: Maasai Women, Human Rights, and the Problem of Culture, in Gender and Culture at the Limit of Rights, supra note 1, at 138, 150­–51, 153–54; Scully, supra note 2, at 27.


[16] See Hodgson, supra note 15, at 153–54; Scully, supra note 2, at 30.


[17] See Maoulidi, supra note 13, at 45.


[18] See Caroline Yezer, How Not to be a Machu Qari (Old Man): Human Rights, Machismo, and Military Nostalgia in Peru’s Andes, in Gender and Culture at the Limit of Rights, supra note 1, at 120, 129–30.


[19] See, e.g., Sally F. Goldfarb, A Clash of Cultures: Women, Domestic Violence, and Law in the United States, in Gender and Culture at the Limit of Rights, supra note 1, at 55, 60 (referencing works by Goldfarb, Catharine A. MacKinnon).


[20] See, e.g., Maoulidi, supra note 14, at 53 (discussing women’s fighting for a role in determining Zanzibari political identity).


[21] See, e.g., Hodgson, supra note 15, at 141–42 (describing how triple marginalization of indigenous African women delayed the first continent-wide conference of indigenous women until 1998).


[22] Scully, supra note 2, at 21.


[23] Id. at 30.


[24] Hodgson, supra note 15, at 151–52.


[25] Id. at 154.


[26] Lynn Stephen, The Rights to Speak and to Be Heard: Women’s Interpretations of Rights Discourses in the Oaxaca Social Movement in Gender and Culture at the Limit of Rights, supra note 1, at 161, 161.


[27] See Alidou, supra note 3, at 180.


[28] See Levitt and Merry, supra note 8, at 92–93.


[29] See Abu-Lughod, supra note 4, at 109.


[30] See Stephen, supra note 26, at 161.


[31] See Rodriguez, supra note 5, at 200.


[32] See Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).


[33] See, e.g., Goldfarb, supra note 19, at 64, 76; Levitt and Merry, supra note 8, at 98–99.


[34] See, e.g., Goldfarb, supra note 19, at 76; Levitt and Merry, supra note 8, at 98–99.  Indeed, as Goldfarb notes, “[Gonzales’s] hearing before the [IACHR] was the first time she was able to speak in a legal forum about her ordeal.”  Goldfarb, supra note 19, at 240 n.13 (emphasis added).  The IACHR ultimately found for Gonzales, holding that the United States had failed to protect Gonzales and her children from domestic violence, denying their rights to equal protection, and had violated Gonzales’s right to judicial protection under the American Declaration. See Lenahan (Gonzales) v. United States, Case 12.626, Inter-Am. Ct. H.R., Report No. 80/11 ¶ 5 (July 21, 2011), available at http://www.oas.org/en/iachr/decisions/2011/USPU12626EN.doc.


[35] See Rodriquez, supra note 5, at 201–02.


[36] Hodgson, supra note 15, at 154.


[37] The other contributors’ persistently allude to this concept.  See, e.g., Abu-Lughod, supra note 4, at 102, 117; Stephen, supra note 26, at 161.


[38] See Levitt and Merry, supra note 8, at 91.


[39] See Stephen, supra note 26, at 171, 178 (describing how Oaxacan women “became public leaders who spoke and were heard ‘like men’”).


[40] Id. at 178 (citing Karen Brodkin, Caring by the Hour: Women, Work, and Organizing at Duke Medical Center 132 (1988)).


[41] Id. at 178.


[42] Cf., Levitt and Merry, supra note 8, at 95 (describing one organization’s claim that “lesbian rights are human rights”); Maoulidi, supra note 14, at 50 (mentioning heightened criminalization of homosexuality in Zanzibar following LGBTI advocacy).


[43] Hodgson, supra note 6, at 4.


[44] See Yezer, supra note 18, at 129.


[45] See Rodriguez, supra note 5, at 207.


[46] See, e.g., Maoulidi, supra note 14, at 32 (“Women became the ultimate cultural icons through which a society would resist cultural intrusion and assimilation.”).


[47] See Scully, supra note 2, at 20–21.


[48] The explicit focus of essays by Goldfarb, Maoulidi, Abu-Lughod and Alidou, respectively. Yezer does consider a broader picture of human rights’ gendering, but is more concerned with the effects of the masculine “insecurities” wrought by humanitarian intervention than with investigating the fundamental gendering of human rights theory.  See Yezer, supra note 18, at 121.


[49] See, e.g., Alidou, supra note 3, at 197 (concluding, somewhat perfunctorily, that an examination of language in a Kenyan radio broadcast “clearly shows Kenyan Muslim women’s exposure to global transnational Muslim women (feminist) discourses”).


[50] Mary Jane N. Real, “Defending Women, Defending Rights: Transnational Organizing in a Culture of Human Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 218.


[51] Hodgson, supra note 6, at 2.


[52] See supra notes 36–41 and accompanying text.


[53] See, e.g., Hodgson, supra note 15, at 150; Rodriguez, supra note 5, at 211; Scully, supra note 2, at 30; Yezer, supra note 18, at 134.


[54] Goldfarb’s essay stands out as the only piece to make clear policy recommendations; however, foremost among even these is the idea of “woman-defined advocacy,” which “incorporate[s] women’s own narratives” and allows women “to set priorities and decide on strategy.”  Goldfarb, supra note 19, at 70.


[55]Alidou, supra note 3, at 181.



Picture 4

Book Review: Reasoning from Race: Feminism, Law, and the Civil Rights Movement


A student review of Serena Mayeri's
Reasoning from Race: Feminism, Law,
and the Civil Rights Revolution
Posted: October 14, 2011 at 4:30 p.m.
Review by: Joanne Caceres*
Harvard Law School J.D. Candidate 2013 

I. Introduction

Reasoning from Race: Feminism, Law, and the Civil Rights Revolution is a legal history of U.S. sex equality jurisprudence and its often attenuated, sometimes harmonious relationship to the civil rights revolution that preceded it.  Aptly described as “reasoning from race,” the basic analogy draws comparisons between the treatment of racial minorities and the subjugation of women in terms of educational and economic opportunities and social stigmas that relegated women to an inferior status as compared to men.  Serena Mayeri traces the rhetoric and strategy that led feminist activists to embrace the comparison between race and sex in their own systematic attack of sexism in America through the courts.  Mayeri then examines how and when these analogies succeeded or failed.  Mayeri’s work extends beyond Supreme Court victories for sex equality, examining how both proponents and opponents wielded race analogies as weapons, how Supreme Court victories affected or did not affect the social and political climate, and whether or not the struggles of women of color were lost when race and sex were seen as parallel, rather than intersecting, groups.  What Mayeri reveals through her thorough and thoughtful scholarship is that race-sex analogies, in practice, were a double-edged sword for feminist activists: while they allowed for early victories and growing momentum against sex discrimination, they also allowed opponents to limit gains or outright reject demands.  Mayeri stresses throughout the narrative how much of this history has been oversimplified, misunderstood, or ignored due to what she describes as the narrow focus by scholars reacting to Supreme Court opinions.  By expanding her purview to lower court case records, advocate’s briefs, and early drafts of Supreme Court opinions, Mayeri develops a complex and nuanced portrait of the intersection of sex and race in equality jurisprudence. 

Mayeri’s contribution to legal scholarship is two-fold: first, Mayeri refutes the claim that the use of race analogies in sex equality jurisprudence was always exploitative and simplistic; second, through her scholarship she makes an implicit argument for her research methodology, calling for other scholars to look beyond Supreme Court opinions for more telling legal historical narratives.  However, Mayeri misses an opportunity to apply her gathered wisdom into actionable strategies for the interested legal advocate.  This missing dimension makes what is in reality quite a comprehensive book appear unfinished.  This Review will examine the overall strengths and weaknesses of Mayeri’s arguments, tracing three important aspects of her work: political and social group dynamics, strengths and weaknesses of reasoning from race as a strategy, and Supreme Court dynamics.  Finally, the Review will explore the various unspoken implications of Mayeri’s conclusions for the modern activist.

II. Overview

Mayeri’s research is painstakingly comprehensive, incorporating several recurrent themes throughout the narrative.  As she notes, “[w]hether advocates embrace or reject civil rights as a model, they cannot escape the power of its legacy.”[1]  This conflict plays out over several stages within and without the women’s movement.  Mayeri explores these tensions and challenges of the women’s movement by examining illustrative cases and the controversy that swirled around them.  Mayeri’s strength is definitely in the details—every assertion made is corroborated through a careful analysis of cases, including examinations of court opinions, as well as clerk memos, legal briefs, and public statements made by advocates related to the case.  She does an excellent job of contextualizing each case, both within the political climate of the time and within each court’s broader docket, with reference to developments in the academic world, in legal non-profit organizations, in the courts, in the legislatures, and in the media.

Reasoning from Race is a compelling counternarrative to the conventional wisdom that race-sex analogies are inherently simplistic and dismissive of women of color.[2]  Part of the force of her argument stems from the fact that Mayeri is not afraid to include examples that do show a lack of sophistication or inclusiveness.  These simplistic instances of reasoning from race are countered with examples showing one of three possibilities: that sophisticated arguments were made but ultimately rejected by the court, that arguments were made in lower court levels and not explicitly described in higher court opinions, or that cases where sophisticated arguments succeeded were not appealed to or accepted by the Supreme Court.  As with any good revisionist history, there needs to be a credible explanation for why others have gotten it wrong; according to Mayeri, her work is both broader and deeper than past examinations. 

Mayeri’s greatest strength may also be her greatest weakness; there are so many examples and details that the experience of reading the book can be difficult.  While the broad story arc is clear, Mayeri’s attempts to organize her narrative both chronologically and by theme are sometimes forced and confusing.  Though one may finish this book impressed by the sheer magnitude of information provided, the reader cannot help but wonder what lessons have been learned and how feminist activists (or any other activists) should proceed in the future. 

III. Comprehensive Contextualizations: Fraught partnerships, wedge issues, and lost intersections

Mayeri’s approach in contextualizing the litigation strategies of female activists reminds us that trial cases do not stand alone in history, but are affected by ever-changing patterns in academia, politics, general social sentiment, and even major personalities.  For example, while many scholars argued for the natural alliance between women and minorities in this country to “‘counteract the divide-and-rule technique,’”[3] throughout this period influential and controversial studies depicted social advancement as a zero-sum game, where one group could only gain at the expense of the other.[4] Feminist activists responded by embracing an intersectional approach, strategically supporting African American women, who were the most marginalized, believing victories for African American women would uplift both groups. 

As Mayeri explains, early victories in the feminist movement relied on the legal climate set in motion by the civil rights moments and civil rights allies. Phillips v. Martin-Marietta[5] was an early example of a victory for the intersectional approach. Phillips was a white woman who had been denied a job because she had young children.  Although Phillips was white, her plight was similar to that experienced by many African American women—in fact, the National Association for the Advancement of Colored People (“NAACP”) was the organization that tried the case (the EEOC and women’s organizations also intervened on her side).  Phillips is also contextualized within the Supreme Court docket.  Not since Hoyt v. Florida,[6] had the Supreme Court reviewed a case with such strong sex-equality implications.  In both cases, race was a salient issue. Advocates combined two strains of “reasoning from race” arguments; they utilized arguments about the policy’s disproportionate impact on black women, and “slippery slope” arguments about how such rules could be designed to keep religious or racial minorities from getting jobs.[7]

Phillips is also an excellent example for Mayeri’s argument that court opinions often avoided discussing “reasoning from race” arguments if the case could be settled on less controversial grounds.  Despite a favorable opinion, the Supreme Court’s opinion did not take a clear stance on whether or not this type of discrimination was acceptable, remanding on the narrow issue of whether or not the company’s policy satisfied the bona fide occupational qualification (BFOQ) exception.[8]  Mayeri demonstrates through internal memos that the Supreme Court’s decision was purposely enigmatic, something that becomes a repeating scenario as more sex-equality cases make it to the Supreme Court.

Unfortunately, Phillips appears to be exceptional for its unified approach—based on Mayeri’s history, the tensions both between the feminist and racial justice groups as well as within different strains of the feminist movement often impeded this type of strategy.  

IV.  Beyond Simplistic Analogies: Intersectional Arguments and Strategic Pitfalls

Mayeri provides the reader with a deep and rich understanding of the strengths and weaknesses of “reasoning from race” as a litigation strategy through her examination of the courts’ and opponents’ strongest counter arguments. For example, Mayeri describes a Supreme Court that throughout the period was reluctant to address as broad and polarizing a problem as sex-equality, but was already reasonably comfortable with race equality.  “Reasoning from race” as a strategy was very successful in the period immediately after the civil rights era because it tuned into the prevailing legal trends and sensibilities at the time.  Sail’er Inn v. Kirby[9] showcases the most straightforward way in which women activists drew analogies between women and minorities, and proved highly successful in cases relating to direct employment restrictions.[10] This analogy helped to “refram[e] apparently benign ‘protections’ as unjust, discriminatory, and contrary to the spirit of the civil rights revolution.”[11]  However, as Mayeri details, this type of argument proved problematic in dealing with other types of workplace discriminations, where the opposition would argue precisely that being female was not the same difference as being a member of another race.  Conservative judges limited or narrowed sex equality gains by framing sex discrimination as only applying when the race-sex analogy was apparent.[12]  This had unwanted effects on issues where the similarities between men and women were seen as significant, including pregnancy discrimination.  Whereas skin color was an immutable trait at birth, pregnancy was a non-permanent state that was chosen.  Other judges argued that pregnancy discrimination did not violate equal protection because while the only pregnant people were women, non-pregnant people included men and women.[13]   

Consequently, a new generation of female activists, including now-Justice Ruth Bader Ginsburg, used race-sex analogies more carefully, strategically choosing to focus on the frameworks of disparate impact and affirmative action.  Disparate impact focused on the effects of laws and sought to argue that even seemingly “neutral” laws that demonstrated disparate impact for women and minorities should be struck down, even if they were supposedly benign laws that were seen to benefit women.  Affirmative action was justified as a measure for combating ingrained and long lasting discrimination and increasing the numbers of women and minorities to a level that more closely corresponded the general population .  Mayeri explores how the strategy of “reasoning from race” is co-opted by opponents, who invert the strategy by using the less contentious critiques of sex-equality advances both to discredit the women's movement, and, implicitly, race-equality victories as well.  Opponents of these policies, among them Phyllis Schafly, argued that these policies unfairly punished private businesses for simply reflecting the preferences of women to not work, and also discriminated against traditional families and male breadwinners.  Although explicit arguments against race were rarely made, Schafly often criticized remedial policies affecting both race and sex without distinguishing between them.[14]   

These developments raised the stakes in sex-equality cases, because any loss of ground in affirmative action policies could have negative effects on minority policies as well.  This required a tricky balance between arguing against discrimination generally while still supporting affirmative action.  Mayeri calls the balance that was found “reason[ing] from sex,” arguing that, in this arena, the race-sex analogy actually benefited race-equality cases.[15]  Califano v. Webster,[16] a case in which a white male challenged a social security benefit that advantaged women, provided the basis for these arguments.  In upholding the law, the Supreme Court distinguished between laws that appeared benign but actually discriminated against female wage earners from laws that sought to redress longstanding harm to women.[17]  The potential of this argument in race affirmative action is evidenced by its use in amici briefs in race affirmative action cases such as Bakke, although it was ultimately rejected by the court.[18]

Despite a general ambition and desire to present the types of discrimination as interrelated, race-sex analogies in this period were often used by advocates and understood by judges as describing parallel, not interrelated equality issues.  For example, in DeGraffenreid v.  General Motors, the court found that black women had to prove that the employer had discriminated either against all women or all African Americans, and refused considering that female African Americans could be a distinct disadvantaged group.[19]  Mayeri analyzes cases in which black women were plaintiffs and argued for race and sex as intertwined, rather than parallel categorizations,[20] including Andrews v. Drew Municipal Separate School District.[21]   This chapter serves as a “lost history,” and seeks to show that the contributions of African American women were important to the developing sex-equality jurisprudence despite their seeming invisibility based on modern feminist critiques. 

Cases like Andrews show the sophistication of a fully intersectional argument at the same time that it raises uncomfortable tensions required to make a successful intersectional argument.  Andrews opposed a school board rule that did not allow single parents to be schoolteachers.[22]  Plaintiffs argued that this was discriminatory towards single mothers, whom were more likely to be raising the out of wedlock children, whereas it would be practically impossible to identify a single father.  Plaintiff also argued that, because African American women were single mothers at a much higher rate than Caucasian women, the policy discriminated against African American women based on race—Andrews and four other women who had been denied the job on this basis were African American, and in Mississippi, nonmarital births occurred more than 10 times as often among African Americans as compared to Caucasians.[23]  However, it is difficult to make the case for race discrimination without at least implicitly claiming that African American culture somehow promoted or condoned non-marital childbearing.  Plaintiff’s dealt with this uncomfortable implication by presenting sociological studies that pointed to lack of access and education regarding contraception, rather than different standards of morality, as the prime factors for the race disparity.[24] Through Andrews and cases like it, Mayeri reflects on how an intersectional approach can be useful, but also how it is fraught with challenges, lest it codify stereotypes about disadvantaged groups.    

Despite the clear racial implications involved in this case, the district court and the appellate court struck down the policy on the basis of sex discrimination only, despite efforts by Andrews’ attorney, the Center for Constitutional Rights (“CCR”) and the Equal Employment Opportunity Commission (“EEOC”) to include issues of race and reproductive freedom.[25]  Although the case was taken up by the Supreme Court, it was dismissed before the Court issued an opinion due to changes in employment laws, making it illegal to consider marital status for employment.[26]    

Despite the fact that cases like Andrews had been argued throughout the 1970s, in the 1980s there arose a vein of scholarship that mourned the lack of intersectionality in the women’s movement.  Mayeri recognizes that the experiences of minority women were in fact often obscured, but challenges the general wisdom that this was because of feminist advocates.  While acknowledging this as a valid critique of the “reasoning from race” paradigm, Mayeri shows through lower court decisions and underreported cases, typically with African American women as plaintiffs, that sophisticated, integrated arguments were attempted.  She also argues that court opinions, especially Supreme Court opinions, which are removed from the facts by several steps, had the effect of stripping from the case the complicated intersectional arguments that were made, generally only citing either race or sex as reasons for certain decisions.  Likewise, the Supreme Court was often unwilling to take a stand on the fraught issue of sex equality, either deciding cases narrowly or through means other than sex equality, further obscuring the fact that such arguments were made.[27]  The true takeaway from this section is to set the backdrop for one of Mayeri’s strongest contentions—that a lot of the complexity of a case can be lost, and legacies misunderstood, if one fails to look deeper than Supreme Court opinions[L1] . [JC2]

V. Supreme Court Reluctance/Avoidance of framework and the importance of looking “Beyond the Surface”

What seems most important to Mayeri is not the actual legal history she has chosen to present, but the promotion of a certain way of looking at legal history.  Mayeri urges researchers to not overlook, along with cases the Supreme Court chooses to consider, those cases that it refuses to consider, which are more likely to slip through the cracks of legal scholarship.  Kirby, discussed in a previous section, is an excellent example both of a case that may be overlooked (because it is a state court case) and of influences on the case that may be overlooked (law clerks).  Mayeri acknowledges that legal scholars dispute the impact of law clerks, but Mayeri finds several examples of law clerks pushing judges in their first drafts of opinions.  In Kirby, the majority opinion echoed an amicus brief that was written by Herma Hill Kay, a Berkeley Law professor, stating,

‘[s]ex, like race and lineage, is an immutable trait, a status into which the class members are locked by accident of birth . . . . Laws which disable women from full participation in the political, business, and economic arenas are often characterized as ‘protective’ and beneficial.  Those same laws applied to racial or ethnic minorities would readily be recognized as invidious or impermissible.’[28]

The law clerk working under the judge who wrote the majority opinion was also women and Professor Kay’s protégé.[29]  While generally it’s unclear how much clerks influence judges’ views as opposed to judges selecting clerks with similar viewpoints, it is hard to imagine that there was no effect in Kirby.

Additionally, Mayeri is able to argue, through her thorough examination of Supreme Court memos, that the Supreme Court deliberately avoided issuing decisions regarding sex equality.  Andrews is an excellent example of this: the Supreme Court was asked to decide a case where race, sex, reproductive freedom and employment discrimination interacted to subordinate young African American women.  The Court struggled to find narrower grounds on which to affirm the decision when they were essentially “bailed out” by the Department of Health, Education and Welfare.[30]  In showing that the Supreme Court did not fully address the issue, Mayeri’s validates her focus on lower court decisions.

V.  Conclusion

Beyond just better scholarship, Mayeri tantalizes the reader with the possibility of applications to current civil rights movements, namely the gay rights movement in America, but never delivers with concrete suggestions.  Is there, based on Mayeri’s extensive research, a right way to build coalitions, or a right way to present race analogies? Are there clear lessons to be drawn from analyzing which feminists cases were successful and which failed?

One can draw some unspoken suggestions from Mayeri’s work.  First, groups looking to emulate the strategy of the Civil Rights Movement should be cognizant that in doing so, their losses can imperil previous race victories. Additionally, arguing that being “x” is the same as being a racial minority creates the risk the courts will not agree that the two are equivalent, rejecting an otherwise valid discrimination claim.  A more successful legal argument in the present day should instead use similar tools, including disparate impact analysis and stereotype inversion.  In our present “PC” culture, discrimination may be more subtle or more carefully shielded as “neutral policies,” but disparate impact can examine effects and shift the burden of proving lack of discrimination to the defending party, where intent is not required.  Stereotype inversion was used in many of the enumerated successful sex discrimination cases: for example, Ginsburg often showed that dependent husbands were being discriminated against when their working wives were denied benefits given to working men. Similarly, activists should not overlook the importance of lower court decisions, especially in light of the historical lack of strong Supreme Court leadership on the issue since the civil rights era.

Perhaps the most important lesson of all is the importance of a cohesive front.  The women’s movement as described by Mayeri seems to have dealt with at least as much conflict within its movement as it did from opponents.  The lack of actual integration of African American women within the feminist elite has probably increased the partially unfair characterization that their needs were unimportant or ignored compared to the needs of white women.  Disadvantaged groups should seek out the voices of those who are most marginalized, and encourage true participation and collaboration from among them.  Lastly, Mayeri’s focus on the impact of clerks should be read by law students who are members of historically disadvantaged groups as a missive regarding the importance of clerking for the continuing evolution of civil rights jurisprudence in the U.S.  Although feminists have had a fair amount of success in challenging employment discrimination and unequal appropriation of government benefits, the seminal Constitutional Supreme Court decision has eluded them.  Many of the cases discussed in the book are referred to by one activist or another as “our” Brown v. Board of Education.  It appears we are still waiting.

[1] Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 8 (2011). 





[2] See id. at 43–44  nn.8–14.  See also id. at 223.





[3] Id. at 9 n.1.





[4] Id. at 24–25. 





[5] 400 U.S. 542 (1971).





[6] 368 U.S. 57 (1961) (finding the conviction of an African American female by an all-Caucasian male jury not unconstitutional for not being a jury of her peers). 





[7] Mayeri, supra note 1, at 52–53. 





[8] Id. at 53.





[9] 5 Cal. 3d 1 (1971).





[10] Mayeri, supra note 1, at 60.  In this California Supreme Court case, the court overturned a liquor licensing law that banned female bartenders.  The decision hinged on comparing the existing law to a hypothetical one which would ban all members of a certain race from being bartenders.





[11] Id. at 33.





[12] Id. at 65 (quoting an appellate court: “[A] relevant physical difference between males and females justifies their separate classification for some purposes, and avoids the problem of Equal Protection of the law . . . the two sexes are not fungible.” (internal quotation marks omitted))





[13] See, e.g., Gedulig v. Aiello, 417 U.S. 484, 496 n.20 (1974).





[14] Mayeri, supra note 1, at 83.





[15] Id. at 126.





[16] 430 U.S. 313 (1977).





[17] Mayeri, supra note 1, at 127-8.





[18] Id. at 127–28.





[19] DeGraffenreid v. Gen. Motors Assembly Div., St. Louis, 558 F.2d 480, 482 (8th Cir. 1977).





[20] See Mayeri, supra note 1, at 145.





[21] 371 F. Supp. 27 (N.D. Miss. 1973), aff'd, 507 F.2d 611 (5th Cir. 1975).





[22] Mayeri, supra note 1, at 146.





[23] Id. at 150.





[24] Id. at 151.





[25] Id. at 158.





[26] Id. at 164-5.





[27] See id. at 230–31.





[28] Id. at 60 (citing Kirby, 5 Cal. 3d at 19–20).





[29] Id. at 60.





[30] Id. at 164-5.