ISSN 1062-7421
Vol. 12 No. 7 (July 2002) pp. 371-372

AFFIRMATIVE ACTION, HATE SPEECH, AND TENURE: NARRATIVES ABOUT RACE, LAW AND THE ACADEMY by Benjamin Baez. New York: Routledge Falmer, 2002. Paper $22.95. ISBN: 0-415-92965-2.

Reviewed by Elliot E. Slotnick, The Graduate School, The Ohio State University.

Benjamin Baez's AFFIRMATIVE ACTION, HATE SPEECH, AND TENURE is an ambitious book that examines three nominally distinct issue areas surrounding race and the academy. It explores their underlying commonalities, both with respect to their treatment by courts as well as in their linkages to the practices and norms of the higher education establishment. Although the approach deviates a good deal from doctrinal analysis as generally practiced within the discipline of political science, Baez, a professor of education, utilizes case law, in part, to develop his arguments. Throughout the study, cases are viewed as "narratives" which
reveal the "dominant cultural texts" that are endorsed by courts. In a "finding" that will not surprise any political scientist, Baez asserts that judicial texts are far from disinterested or neutral legal determinations. Rather, he finds that they have developed in a manner that ill-serves the rights and interests of minorities in American society. This occurs, in large part, because courts impose a formal legal framework, "juridical terms," to resolve race-based claims, rather than an approach which is
"situation sensitive" or one that takes account of "social context." As a consequence of this, courts "enact their own form of violence against racial minorities" (p. 11). In essence, interpretive judicial speech leads to practices that cause great harm, both theoretical and real, to minority interests since "language can ensure subordination" (p. 96) and "the cases show how the court manipulates apparently neutral and well-established legal doctrine to justify its conservative agenda" (p. 99). To combat this, Baez favors an alteration in rhetorical premises such that those pursuing race based claims in these areas need not prove harm but,
rather, societal institutions must justify their actions denying race based claims.

At its best, Baez's study is effective in documenting the "stories" courts (at all levels) tell and the broader implications such stories have. He is generally thoughtful in moving outward beyond the cases per se. The book is most compelling when exploring the affirmative action arena where the judicial stories are most clear-cut and their fallacies most readily revealed. Throughout the study, Baez utilizes a synthetic approach to develop his arguments, relying extensively on the work of multiple
writers in multiple disciplines.

Although this is well and good ultimately, I think, at least for a political science readership, the book fails on many levels. At the outset, it should be pointed out that it is not an easy read. Baez offers an inordinate amount of road mapping, spreading more ink telling the reader what he is going to do than he does actually doing it. Consequently, the renderings of cases and doctrinal development tend to be

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cursory and over-simplistic, as well as highly selective and, at times, non-contextual. The fundamentally simple notion hammered home by Baez about the political nature of adjudication is offered up to the reader as if it were a revelation, and a complex one to boot. Further, as a general matter, Baez's prose is both layered and labored and, frankly, often difficult to digest. What is one to make, for example, of the assertion that, "A politics that fails to question the historical and political
nature of any race project not only cannot see the tools of contestation, but may re-inscribe historically oppressive formative discursive practices into the body directly, leading individuals to discipline themselves in accordance with the tenets of those formative discursive practices" (p. 149).

From what I've said thus far, it should come as little surprise to note that the analysis is ideologically driven at every turn. The reader is continually met with terms and concepts such as "judicial violence," the "imperialism of court speech," and the language of "agency and structure." Although music to the ears of some, the approach will be anathema to many others. In a similar vein, Baez's analysis will not be convincing for readers who have difficulty making the transition from the writings of the likes of Freud, Foucault, Kant, and Nietzsche to the decisions of courts. Among the more contemporary analysts Baez uses to draw the link between
discourse and legal development are Cornell West, Duncan Kennedy, Catharine MacKinnon and Dinesh D'Souza, while political scientists who can help inform the study (such as John Brigham, for example) receive no mention.

At bottom, the ultimate failure of the book, for me, lies in its punch line. Baez concludes his analysis by noting that the state and, of course, courts, have substantial limits when they are relied on as the exclusive mechanisms to remedy racial injuries, a point well taken. Consequently, Baez advocates the inclusion of "non-state" responses to the legal issues examined, a "politics of resistance" spreading "counternarratives" to the stories told by courts and which predominate in the academy. Such a strategy, it seems to me, although not profound, does make much sense. When Baez offers some substantive content to such counternarratives, however, he falters in my view, opting for arguments premised in relativism and context and largely eschewing empirical truths which, simply, cannot be trusted. Yet a standardless, relativist world ultimately does not convince and will, in the end, not be taken seriously by a meaningful proportion of judges or academics, the very audiences whose speech acts must change if the author's rhetorical agenda is to move forward.


Copyright 2002 by the author, Elliot E. Slotnick.