From Anti-Discrimination to Anti-Subordination: Implementation Matters

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As a whole, then, outsider scholars, including LatCrits, seek to employ law as an instrument of social transformation towards social justice worldwide. Outsider scholars have called for a move from the ‘anti-discrimination principle’ under formal equality to the ‘anti-subordination principle’ and the attainment of substantive security: the material attainment — in other words, of the social conditions enabling all humans to actualise the ‘pursuit of happiness’ to which all humanity is said to be entitled.6 In current terminology, ‘substantive security’ might fairly be described as the full social and legal implementation of the civil, political, cultural, economic and other human rights already recognised formally in myriad international instruments of the past half-century, but not yet fully implemented anywhere on Earth. Substantive security conveys the realisation of a post-subordination society, the ultimate goal of OutCrit and LatCrit undertakings.

From Francisco Valdes (2005), “Legal Reform and Social Justice: An Introduction to LatCrit Theory, Praxis and Community,” Griffith Law Review, 14:2, 152.

From Anti-Discrimination to Anti-Subordination: Implementation Matters

NCLB, Evidence-Based Policy-Making, and Race-Neutrality

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In the US education policy arena, the focus on “scientific evidence” is inscribed in the 2001 NCLB Act. NCLB requires that all educational practice (including school discipline) be based on research very narrowly defined. It officially legitimizes the scientific method and casts randomized field trails as the “gold standard” while it discredits critical methodologies and studies that attempt to place qualitative data in social–historical context (see Lather, 2004a). Evidence-based policy-making in education is, consequently, infused with race-neutral discourses. In his discussion of NCBL as a color-blind policy, Leonardo (2007) notes that any attempt to use race as an analytical framework or interpretive lens is itself deemed racist because it is believed to be ensnared in the white supremacist notion that race is a real form of difference. Thus, evidence- based research in school discipline and safety tends not to consider disparities in implementation across geographic areas or address unequal outcomes in school policing across racial lines. This narrowing of what constitutes research and the use of race-neutral discourses creates a hegemonic evidence-loop, or a “genre chain” (Taylor, 2004), which constitutes both the textual documentation in support of school policing and a strategy of power that normalizes differential treatment of students across racial lines.

From Kathleen Nolan (2015), “Neoliberal common sense and race-neutral discourses: a critique of ‘evidence-based’ policy- making in school policing,”Discourse: Studies in the Cultural Politics of Education, 36:6, 899.

NCLB, Evidence-Based Policy-Making, and Race-Neutrality

The Veil of Neoliberal Technocratic Efficiency, Cost-Effectiveness, and Prevention

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Color-blind ideologies inform what Garland (2001) refers to as “criminologies of everyday life.” This thinking within crime control does not attempt to gain legitimacy through racial pathology but, instead, emphasizes neoliberal technocratic efficiency, cost- effectiveness, and prevention. Rather than explicitly supporting policies that lead to the mass incarceration of people of color, it has supported the rise of policing and private security into every domain of civic life and, in particular, the use of aggressive forms of policing that target low-level violations of the law in an effort to prevent more serious crime. Garland notes that the two sets of divergent discourses – one explicitly racialized (dangerous other) and the other race-neutral (prevention) – mesh well to form our current culture of control (Garland, 2001) – a culture in which punitive crime control in viewed as necessary within the context of a “naturally” occurring rise in social insecurity and disorder.

From Kathleen Nolan (2015), “Neoliberal common sense and race-neutral discourses: a critique of ‘evidence-based’ policy- making in school policing,”Discourse: Studies in the Cultural Politics of Education, 36:6, 897-8.

The Veil of Neoliberal Technocratic Efficiency, Cost-Effectiveness, and Prevention

What “Race-Neutral” Policy Preserves

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The growing scholarship that illuminates the evolution of this cultural and discursive transformation refers to it as the rise of a “color-blind” era in which policy becomes officially “race-neutral” (see, e.g., Bonilla-Silva, 2010; Brown et al., 2003). In the post- Civil Rights era, race-based discrimination is illegal, thus, the logic goes, if we choose not to “see race” then racism will be eliminated. Yet, as Bonilla-Silva (2010) maintains, color-blind policy serves as an ideological armor for a covert and institutionalized system of racism and preservation of white privilege. In regard to crime control, Alexander (2010) illustrates how color-blind policies permit us to label people of color as “criminals” and then engage legally in similar exclusionary and discriminatory practices, that when explicitly based on race, have been outlawed.

From Kathleen Nolan (2015), “Neoliberal common sense and race-neutral discourses: a critique of ‘evidence-based’ policy- making in school policing,”Discourse: Studies in the Cultural Politics of Education, 36:6, 897.

What “Race-Neutral” Policy Preserves

Markets, Racial Inequality, and Individual Choice

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At the same time, a divergent set of discourses that obscures the racism embedded in crime policy emerged in the 1990s. Melamed (2011) argues that the post-Civil Rights, officially anti-racist political economic order has ushered in an era of “neoliberal multiculturalism” in which value is placed on the inclusion of “diverse groups” and racism is viewed only in individual, attitudinal terms. The existence of racism is still acknowledged within this framework, but the cultural scribes of neoliberalism suggest that free markets pave the way to personal freedom, and racial inequality is simply a matter of an individual choice to not take part in those markets (Robbins, 2004).

From Kathleen Nolan (2015), “Neoliberal common sense and race-neutral discourses: a critique of ‘evidence-based’ policy- making in school policing,”Discourse: Studies in the Cultural Politics of Education, 36:6, 897.

Markets, Racial Inequality, and Individual Choice

Policies are Racial Stories

[L]aw is essentially a story that reflects and legitimates the (racial) viewpoints and interests of those in power.

The same can be said for public policy.


 

From Enrique R. Carrasco, “Critical Race Theory and Post-Colonial Development: Radically Monitoring the World Bank and the IMF,” in A NEW CRITICAL RACE THEORY

Policies are Racial Stories

Seven Tenets of Critical Race Theory, Pt. 5

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5. Revisionist History is another tenet of CRT. According to Delgado and Stefancic (2001), “Revisionist history reexamines America’s historical record, replacing comforting majoritarian interpretations of events with ones that square more accurately with minorities’ experiences” (p. 20). In essence, this suggests that American history be closely scrutinized and reinterpreted as opposed to being accepted at face value and truth. It requires a more nuanced understanding as well as taking a critical perspective toward examining historical events.

From Shaun R. Harper, Lori D. Patton, & Ontario S. Wooden, “Access and Equity for African American Students in Higher Education: A Critical Race Historical Analysis of Policy Efforts,” Journal of Higher Education 80, no. 4 (2009): 391-2.

Seven Tenets of Critical Race Theory, Pt. 5