Prof. Cheryl Harris - Re-Imagining Justice | RMIT University

Crystal McKinno:
Thanks all for coming and spending your lunch hour and a bit with us today to hear Professor Cheryl Harris, um, deliver a speech on Reimagining Justice, Critical Race Perspectives. And then afterwards we're gonna have a discussion with her and Professor Mark McMillan as well. Um. So firstly, my name's Crystal McKinnon.

Crystal McKinno:
Um, I'm a [Yamergy 00:00:27] woman and I'm also the Vice Chancellor's Indigenous Research Fellow here. And I'd like to do an acknowledgement of country, um, to begin today's session. RMIT University acknowledges the people of the Woi wurrung and Boon wurrung language groups of the eastern Kulin Nations on whose unceded lands we conduct the business of the university. RMIT University respectfully acknowledges their ancestors and elders past and present. RMIT also acknowledges the traditional custodians of, and their ancestors on the lands and waters across Australia where we conduct our business.

Crystal McKinno:
I would also like to acknowledge, um, other aboriginal people here in the audience today and other, um, other people of color and black people as well, particularly, thanks for coming. So today's talk is brought to you by the [inaudible 00:01:16] program, um, and also by the office of indigenous education and engagement. Um, and we're really blessed and honored to have Cheryl here today. It's really exciting and I can't wait to hear your talk. So I'll introduce you to her right now, and Mark, and then I'll let her begin.

Crystal McKinno:
So Professor Cheryl Harris is a law extraordinaire from UCLA. (laughs) Um. She really is an international leader, um, in law scholarship and critical race scholarship. And yeah, she's, she's incredible. Um. So she teaches at the U- UCLA School of Law, um, and she was the key organizer of several major conferences that helped establish a dialog between US legal scholars and South African lawyers during the development of the South Africa's first democratic constitution. And the work played a significant role in the production of her acclaimed and influential article, Whiteness is Property, um, which we'll be hearing a little bit about today I believe.

Crystal McKinno:
Um, she continues to, um, provide groundbreaking scholarship in the field of critical race theory and other, um, and law theory generally. She particularly engages the issue of how racial frame shape our understanding and interpretation of significant events, um, internationally and anti-discrimination laws. She's served as a faculty director for the critical race studies program at UCLA Law School and has been widely recognized as a groundbreaking teacher in the area of civil rights education, um, and she's received the ACL- ACLU Foundation of Southern California's Distinguished Professor Award for civil rights education.

Crystal McKinno:
And I'll introduce Professor Mark McMillan now as well to get these formalities out of the way (laughs) and so everyone knows who's going to be coming up. Um. So he's the Deputy Provost Chancellor in the Office of Indigenous Education and Engagement and he's also currently the chair of RMIT's academic board. He received his bachelor law's from ANU and a grad deep in legal practice from ANU and a whole list of other qualifications. (laughs) Um, um, but one of his most prized awards was he was awarded the National [inaudible 00:03:41] Scholar of the Year in 2013. Um, his research interests are in the area of human rights and in particular, the expression and fulfillment of those rights for indigenous Australians, which we'll be hearing more about today as well.

Crystal McKinno:
Um, he's currently leading an ARC project called Lawful Relations from [inaudible 00:03:58] Treaty which looks at lawful encounters between the state and aboriginal communities of Victoria. And we're really honored and blessed to have him here today as well. So, Cheryl I'd like to invite you up.

Cheryl Harris:
Good afternoon. I wanna thank you all for coming. I wanna particular thank my hosts who have been very generous and patient with me as I endeavor to understand the ground on which I stand and the relationship that it establishes between us. I particularly want to acknowledge the Woi wurrung people of the Kulin Nations as the traditional owners on whose unceded lands the university stands and on which I stand. We respectfully acknowledge the elders, past, present and future and I want to also acknowledge the traditional custodians and their ancestors of the lands and the waters of the land that we now call Australia.

Cheryl Harris:
I also wanna thank you, Mark, in particular, uh, for this extraordinary opportunity to come and learn more about the efforts to bring about meaningful change here. Uh, this has been part of a longer conversation in which we've been engaged on both sides of a Pacific here, comparing the challenges of addressing the legacies of domination in which we are respectively entrenched. The task, uh, at hand is hard and it's wonderful to have comrades like Mark to engage with them to understand the powerful connections between our histories and our present. As the incomparable James Baldwin says, "The history is not past. It is the present. We carry our history with us. If we pretend otherwise, we literally are criminals."

Cheryl Harris:
So in order not to be a criminal, um, I wanna, um, just acknowledge that that conversation has been an important one for me. I also would be remissed if I didn't mention and thank the incredible staff of the center, [Castuli 00:05:59], Ally, Stacey, Nicole and others. They've been all very amazing in welcoming me and making me feel at home. A special thanks also to Jason, [Braley 00:06:07] and Crystal who facilitated conversations that have been really enlightening and meaningful for me.

Cheryl Harris:
Uh, you can read many things and accounts about a place but you can only really begin to understand it through listening to the perspective of the lived experience of people on the ground. And they've been very generous in sort of sitting with me and talking and helping me understand something about the particulars of this place. Um, so to begin with, I'd like to map some of the intellectual ground in which my own work is rooted and share some of the context out of which it emerged and the issues with which it is engaged. I'm gonna jump right into the topic, um, first to explain what's meant by critical race theory.

Cheryl Harris:
And since I'm intruding on your lunch and standing between you and sustenance, I'm gonna try to give you some food for thought at least. So, uh, with your indulgence I wanna proceed in three parts. The first explains what the CRT, the critical race theory project is, what it came about, how it came about, why it came about, and what are some of its basics insights for methodologies. In part two I wanna use my own work on race and property to illustrate a kind of CRT approach, certainly not the only way but just sort've an illustrative of what is meant. Uh, and the last part I wanna offer some thoughts on what I've been calling racial technologies, uh, some brief examples from the United States context that will hopefully illustrate what is at stake in the critical project that seeks to put racial power at the center of analysis.

Cheryl Harris:
So first, a story of origins. So while critical race theory has often been presented as a kind of discrete course in the curriculum, in fact it's always been a project that's been directed at the entire edifice of American law and legal culture. And this derives from the fact that it arose f- as a response to a failure, a failure of the prevailing account of the relationship between law and racial subordination. And while traditional views had described racial inequality and subordination as exceptions to the rule of law and principles of equal protection, this seemed far too simple to explain the complex way that both the rule of law and equal protection in the US context have functioned to obscure, protect and legitimate racial subordination even as they have both functioned as important tools in their dismantling.

Cheryl Harris:
So the point is, the same ideas that have been used to dismantle racial subordination have been used to support it. Um, this concern did not just arise as a thought experiment. It came from a particular moment in time, a set of conflicts and contestations over both legal ideology and the composition of a legal academy. By the 1970s, the standard viewpoint was that liberal legal reform in the United States had triumphed in displacing the old racially exclusive regime and replaced it with a merit based process oriented system in which race no longer should matter.

Cheryl Harris:
This triumphant story however was placed under pressure from several directions. First, the election of Ronald Regan, you remember him, and the rise of the conservative assault on the anti-discrimination law challenged the view that there was a consensus about the meaning of race and racism. And secondly, from the left, there was a growing group of left leaning legal scholars who raised a set of questions and challenges to the idea of laws neutrality generally.

Cheryl Harris:
Critical legal scholars, as they called themselves, contested the idea that law was simply a neutral arbiter separate from the political fray. By the early 1980s, a small handful of numbers of scholars of color had infiltrated, and I use that term deliberately, the legal academy, albeit, uh, again I say very small numbers, and they did not see themselves as able to cosign the view. That their presence was simply to integrate into the preexisting arrangements and carry on.

Cheryl Harris:
Their very presence was destabilizing the contention that color blindness was either possible or normatively desirable. And they brought with them the weight of histories of struggle and a set of questions that arose from it. So thus in certain respects, the stage was set and ripe for disruption. On the conservative side, the attainment of state power had opened up a frontal attack on anti-discrimination law and one of the principle tactics and mobilizing this retrenchment was a retelling of a fight for equality in the United States as a racial progress narrative.

Cheryl Harris:
A sanitized account of the civil rights movement was conscripted to endorse colorblindness and equal protection as a meaning of equality. This de-radicalized vision of civil rights, presented the limited legal reforms of anti-discrimination law as the sum total of rights under law, and fed into an endorsement of the existing racial status quo. In particular, Martin Luther King's speech at the 1963 march on Washington was appropriated to endorse a colorblind perspective. You know, I have a dream, children, black and white together.

Cheryl Harris:
Um, this view, or this move I should say, erased both the context and the substance of the civil rights struggle more broadly and in particular, it was, uh, uh, a misrepresentation, a mis-characterization of King's intervention specifically. In this famous speech, he not only talked about his dream, but he also denounced the failure of America to live up to its ideals and articulated a demand that it do so. In particular, he said the following, which I doubt that you hear quoted often.

Cheryl Harris:
We have come to our nation's capital to cash a check, a promissory note that all people would be guaranteed their rights. As King described it, United States had defaulted on its promise. Quote, instead of honoring this sacred obligation, America has given the negro people a bad check, a check which has been marked insufficient funds. He contended that the fact that there was the capacity to honor that debt, uh, was the focus of the march and the idea was to get the government to do so. Furthermore, the prevailing account of race tre- uh, the prevailing account treated race as an external social phenomena which was only relevant to disputes in which race was specifically invoked.

Cheryl Harris:
Law itself was presumed to be an otherwise colorblind terrain. This claim about colorblindness was related in part to the way in which the civil rights movement was itself appropriated. And one place that this could be seen most clearly was in the debate over affirmative action, which was a critical site in which assertions were officially made through the Reagan justice department that race conscious affirmative action projects were inconsistent with the true meaning of equality as expressed by Dr. Martin Luther King.

Cheryl Harris:
What was interesting is that the liberal defense of affirmative action and response, mounted by some of the leading members of the legal academy, accepted the conservatives' definition of colorblindness as the opposite of racism so that race conscious affirmative action could only be justified as an exception, a kind of necessary evil. Thus both liberals and conservatives conceived of racism and racial discrimination as aberrational irregular deviations from an otherwise neutral playing field. Racism was then defined only as the intentional consideration of race by a conscious wrongdoer. Everyday social practices, which enacted an undergirded racial inequality were exempt from scrutiny, let alone consideration.

Cheryl Harris:
Conveniently, this view allowed both the acknowledgement of racism and simultaneously the insistence on its limited significance. This view further legitimated important myths of American meritocracy and served as a bold work against more radical visions which situationed racism in a global context and raised the question of colonialism. This view also conformed to a narrative of national self correction, American exceptionalism, and significantly limited the scope of required intervention. Exclusionary practices that were expressly race specific were eliminated but race neutral practices that traveled under rubric of fair and meritocratic were set apart and left untouched. The baseline was presumed to be fair.

Cheryl Harris:
Racial enlightenment then was conceived in terms that defined bias as the belief that race was important or significant. How then was residual inequality explained under this view? Was it dual inequality, is the result a private choice, natural forces, tragic disfunction, cultural deficiencies, developmental gaps? These were problems that were located in individuals whose difference from the norm could be marked as racial disadvantage. The cure for such though did not lie in focusing on race because to do so would be to reinscribe difference. To be race conscious itself was to be problematic. And in this way, both race co- since race consciousness characterize both white supremacists and black nationalists, both were racist even though some would say there are good people on both sides. (laughter)

Cheryl Harris:
Advocacy for racism and anti-racism were thus placed on the same moral field. These debates were brought to the front in various venues, including the hallways of American law schools, where students and their allies on the faculty and in the community of activists, anti-racist advocates began to question the unrelentingly white and male nature of the legal academy as well as the presumptions of colorblind race reform. One of the most significant fights emerged at Harvard Law School when Derrick Bell, one of two black law professors at the school, left in 1980 to become dean of the Law School of Oregon.

Cheryl Harris:
Notably, Bell had been working outside the traditional rights paradigm and was teaching a groundbreaking course on race, racism and American law from a textbook he had written challenging the prevailing assumptions of law and racial inequality. When the discussion turned to who would be hired to replace him, the administration's response was telling. First the administration contended that since there was no qualified black scholar in the entire country who merited a Harvard appointment, why wouldn't an excellent white professor be better than a mediocre black one?

Cheryl Harris:
Secondly, he pointed out that there was no need for a special course since the material was covered elsewhere. Student protests rapidly emerged under the demand of desegregation now. Importantly also, rather than accept the administration's position, students including Kimberle Crenshaw and others organized a mini-course taught by scholars of color from other schools. The teachers included some of the emerging critical scholars of color, such as Charles Lawrence, Neil Gotanda, Mari Matsuda, Richard Delgado.

Cheryl Harris:
The alternative course both reflected race conscious organizing and an understanding of law schools, not in simply places where one learns tools to apply out there in the real world, but as sites of knowledge productions that were places of contestation themselves. In other pockets of the country, notably at Berkeley, student organizing similarly challenged the legal academy's narrow definition of who was qualified to teach and the content of legal education. At the same time connecting this to global anti-apartheid struggles.

Cheryl Harris:
The emergency right critique contested them both in narrow limits of un- the understanding of racial power reflected in liberal legalism as well as what was seen as a limitation to some extent of a left oriented critique. While the critics had sought to expose the role of law in upholding unjust social arrangements, some seemed unable to apply this analysis to racial power in law. In fact, some critics on the left war- argued that because racial categories are not real or natural but instead are socially constructed, it was a mistake to center race as a category of analysis or as a basis for political action.

Cheryl Harris:
Critical race theory came to be such not in one particular moment then but as a series of gatherings that as a seminal essay described was both an intervention against liberalism and to some extent against the l- leftist accounts that obscured racial power. As expressed in the essay, it was a project that quote, was designed, that was designed quote, to not merely understand the vexed bond between rac- law and racial power but to change it.

Cheryl Harris:
To do so, critical race theory argued against the notion that legal scholarship can be written from a position of detachment of neutrality because it is itself an important site for the construction of racial power, which is exercised ideologically and legally. This position has often, often been caricatured as evidence that cri- critical race theory is nothing but l- ideology, political correctness run amuck. But underneath the notion that critical race theory constitutes an ideological account of law lies the false presumption that the dominant account of law is neutral and non ideological.

Cheryl Harris:
To consider one example, what are the underlying presumptions of the principles of contract law as presented by most legal textbooks? The governing principle is efficiency, which is achieved through allowing the parties to reach an agreement through bargaining. The presumption is that the parties have relatively equal bargaining power so that the courts do not intervene except for some exception, some aberration, some disfunction. But how do most people experience contracts?

Cheryl Harris:
Given the hundreds of thousands of contracts that are executed every day, are they e- executed between parties of equal bargaining power? Is there a negotiation of the terms? When you sign the lease, when you sign the student loan agreement, when you sign the contract with the internet service provider, even contracts of employment. These are the prevailing forms of contract that include, at least in the United States, boiler plate language that increasingly revolves the waiver of certain rights, including notably in some employment contracts, the right to sue ones employer for misconduct or discrimination.

Cheryl Harris:
Why then do the contract textbooks not begin with this fact? What flows from the fact that they do not? I argue that it legitimizes the fiction that agreements are bargained for and the terms are consented to. The power of consensus is that we are taught not to question the, the, uh, neutrality of the doctrinal rules of the game. If we consider what it might mean to take up this insight in the context of race, we can see that one of the core principles of Q- of CRT emerge, law does not merely reflect race as an external phenomenon. Law and legal doctrine constitute an ideological narrative about what race and racism are.

Cheryl Harris:
The issue is not simply how societal bias is reflected in the legal system, or how the law manages disputes that implicate race. Rather, the objective is to map the mutually constitutive relationship between race and law. What we say is that law makes race and race makes law. And it, uh, not only in domains where race is explicitly articulated but where race is unspoken and unacknowledged. In this regard, CRT cuts across additional doctrinal boundaries as much as it traverses and connects with other academic disciplines. At the same time, it coheres in the drive to excavate this relationship.

Cheryl Harris:
So let me offer a brief example of what I mean when I say the race makes law and law makes race. So first from history. So, uh, at the time of slavery the law presumed that to be black was to be a slave. That was a legal presumption, uh, in law embodied in some respects in common law decisions and in some places in statue. So here you can see the law is not simply reflecting the relationship between race and slavery, it is constituting that relationship, uh, and is constituting the meaning of race itself.

Cheryl Harris:
The social interests supporting slavery was not simply reflected here. The law was providing the ideological architecture upon which slavery and racial oppression were intimately linked. Let me give another more recent example. Uh, racial discrimination under equal protection in the United States requires proof of intent. That's a concept of racism which excuses non-intentional conduct. That is not simply reflecting an external reality, that is constituting a definition of what race and racism mean. A third definition from another field, property and the rule of first possession. I suspect you all are familiar with this one.

Cheryl Harris:
So the rule seems to be race neutral. It says nothing about race itself. But how is possession defined? What are the acts that constitute possession? Is hunting and gathering a posses- a possessed react or is it only agricultural use? Is it labor? What is the cultural context in which possession is defined? So you can see by privileging certain practices as possession while ignoring others, the rule of first possession while not me- mentioning race at all, is instantiating racial power.

Cheryl Harris:
So let me move on to an example from my own work. Um, how am I doing for time? Okay. Well, when I see you all keel over, I know it's time to stop. (laughter) Okay. My work and race and property began with a story of my grandmother, Elma. She had been born in the late 18th, early 20th century in Mississippi several decades after the end of the civil war between the North and the South in a small community in a sharecropping family.

Cheryl Harris:
While slavery had ended as a formal legal system, the afterlife of slavery consigned many black people to a state in which they held, as the famous phrase goes, nothing but freedom. They were formally free but they were locked out of everything else into a kind of neo-slavery. The reconstruction amendments, the 13th, 14th and 15th amendments to the US Constitution that were enacted between 1865 and 1870 had sought to radically alter the constitutional architecture that had buttressed the slave regime. The 13th amendment had ended, uh, involuntary servi- or rendered involuntary, uh, servitude unconstitutional with one important exception. The 14th amendment had declared birth right citizenship, which has overturned the clause which accounted enslaved Africans as only three fifths of a person. And the 15th amendment had guaranteed the right to vote for all men regardless of race. Women don't get it 'til the 19th amendment.

Cheryl Harris:
As WB Dubois explained in the classic black reconstruction, when the confederate states succeeded from the union to protect the institution of slavery, enslaved Africans engaged in what he called a general strike, withholding their labor and ultimately abandoning the lands on which they were held to join the union army. They then became the driving force in seeking to establish radical democracy, demanding land and freedom and exercising political power. All of this came to a violent and abrupt halt through the exercise of reactionary violence in an epic betrayal of the radical abolitionists democracy through the reconciliation between the North and the South.

Cheryl Harris:
As a political compromise between the democrats and the republicans, left the fate of formerly enslaved Africans in the south to the whims and vagaries of state governments that came to be dominated by redemptioners who sought to make the world right for white men again. The Supreme Court eviscerated the reconstruction amendments in a series of cases ruling congressional efforts to control racialized violence and disenfranchisement as an impermissible intrusion into areas of state concerns' violation of so-called states rights.

Cheryl Harris:
The South's efforts to re instantiate slavery through state laws that subjected black people to criminal offenses for a range of offenses, um, were called the black codes. So you see here on the left, that's your left, um, one of the early, uh, examples of these black codes in Mississippi, which permitted any, um, officer to arrest any freed men who has quit his job, um, and, uh, paid the officer for that arrest. So you see there's a little bit of incentive to find the people and do so.

Cheryl Harris:
And if they're convicted, um, then, um, the, they were fined and subject to further imprisonment. So, uh, what happened when these laws were passed in a range of states, these were called the black codes, um, the reconstruction congress said, no you can't do that. You're basically re instantiating slavery. We just had a war over this. So what happens then?

Cheryl Harris:
They shift towards the kind of laws that you see on the right. Um, now here you see nothing about the mention of slavery. This is post 1877. But a description about vagrancy, okay. Um. This shift then from a race specific to race neutral rule, uh, which basically made being jobless or homeless a crime, an antecedent of today's criminalization of poverty, um. But in the absence of evidence that one was contractually bound to a white employer, black people were subject to arrest, conviction and fines for petty offenses often on manufactured evidence. They were thrown into an indebtedness that they could not pay and then leased to private corporations to provide labor as a mean of debt repayment.

Cheryl Harris:
The prohibition on involuntary servitude contained in the 13th amendment was ineffective in reaching this system of coerced labor because of the exception here that you see, which was read to permit such servitude as punishment for a crime. So once placed under the [carsal 00:26:28] authority of the state, people were deemed in fact to be slaves of the state, as one infamous decision, Ruffin v. Commonwealth decided in 1871 put it. This is all post reconstruction, okay?

Cheryl Harris:
So the origins of corporate wealth, the primitive accumulation, were derived from this coerced labor. As Douglas Blackmon's book, Slavery by Another Name and other historians have documented, major US corporations like US steel, the railroads and lumber factories heavi- heavily relied on convict leasing for building critical industrial inter structure and generating profits. While immigrant labors from Europe were also pressed into service, in the South this form of labor coercion especially targeted black men and women.

Cheryl Harris:
As the great abolitionist and activist, Frederick Douglas, put it in this 1893 article, the convict leasing system managed to install racial oppression through race neutral means. The destitution of blacks ensured that they would be prime fodder for the carsal regime. They were not worthy of consideration in fact. Um. As he said, to have negro blood in the veins made one unworthy, a social outcast, a leper even by the church. So that even civil society would not rescue them.

Cheryl Harris:
Secondly, as Douglas notes, the entire apparatus of the, uh, criminal sanction system from the police, the sheriffs to the court officials to the wardens were white. While this did not exempt whites completely from this from of exploitation, the racial hierarchy of the system produced a racially disproportionate outcome. You see the numbers down at the bottom where he's talking about under this regime, 90% of the state's convicts are black.

Cheryl Harris:
The justification for these extractions, what the late Clyde Woods calls asset stripping, was asserted through racialized logics that targeted particular bodies under race neutral rules. The spectacular abuses of this system ultimately led to what was called the progressive movement, uh, that included influential southerners to call for its abolition. The fact that convict leasing undercut the value of free white labor created a push for reform which did not abolish but rather shifted the value of a conscriptive black labor from the private to the public sphere. So you move from convict leasing to the chain gang.

Cheryl Harris:
There the state could undertake various improvement projects including the construction of better roads and state infrastructure. What remained constant was the central rule of law and criminalizing black subjectivity and legitimating the predatory extraction of labor and value from black bodies through the imposition of debt. So here's wh- my attempt to sort've show that at each level, the first is declared illegal and then it moves to convict leasing. Convict leasing is declared illegal and then you move to the chain gang. But at each step along the way, the same dynamic, the same political dichotomy of debt and criminality and blackness is [inaudible 00:29:21].

Cheryl Harris:
Paralleled and linked to convict leasing and the chain gang were also systems of ownership and control of property that ensured black subordination. As Alex Lichtenstein describes, quote, in the US South, planters effectively transformed X slaves into an agricultural proletariat with a gamut of labor relations ranging from tendency to sharecropping to debt peonage. The necessary corollary of this labor system was the preservation of white supremacy. So this was the political economy into, and racial regime into which my grandmother was born.

Cheryl Harris:
The fact that she was fair skinned with affluent features, straight hair and could in the colloquialism at the time, pass for white, did not immunize her or her similarly fair skinned relatives from the extractive demands of that system. When her aunt, who was similarly light skinned, left for the steel mills of the Midwest and sent for my grandmother and the rest of her family, they became part of the great migration north that altered the shape of urban America.

Cheryl Harris:
But the forms of labor, control and extraction, while shifting, were updated, uh, and updated but racial hegemony persisted. While no longer specifically tied to one employer, black workers faced a host of official and unofficial racial exclusions from certain jobs and acc- occupations and were herded into ghettos. Gender further complicated the conditions for black women who were often funneled into domestic labor under even more extreme forms of labor control and left vulnerable to systemic sexual abuse and assault.

Cheryl Harris:
They could forego caring for their own children in order to take on the work of caring for others. My grandmother found herself faced with such choices in the 1930s after marrying, having two children and separating from my grandfather. To support herself, she chose a third option and applied for a job at a fine department store in downtown Chicago that only employed whites. In passing for white, she attained access to an economic benefit but at tremendous cost. It was an act of great daring and self denial.

Cheryl Harris:
In transgressing the racial boundaries, she illustrated that the valu- valorization of whiteness as treasured property in a society structured on racial caste. In this way, whiteness is more than personal identity but is actually of material value. The assumptions, privileges and benefits that accompany the status of being white I argued, have become a valuable asset that whites sought to protect and that those who passed were seeking to attain. Over time, these expected benefits and expectations had been affirmed, legitimated and protected in law, constructing a property interest in whiteness that formed the background against which legal disputes are framed, argued and adjudicated.

Cheryl Harris:
The property interest in whiteness did not only emerge from the system of chattel slavery and racial oppression, but the parallel system of domination of Native American peoples, out of which were, created racially contingent forms of property and property rights. The seizure and appropriation of black labor through chattel slavery and the seizure and appropriation of indigenous land were central to this process and even as the legal doctrine changed and shifted, white expectations and the right to control and expropriate persisted.

Cheryl Harris:
Uh, in fact, they have often, these expectations have often functioned to limit the reach of any remedies as too disruptive of the expectations of rig- whites who are individually innocent. Whiteness as property persists, thus even in a post-apartheid regime in ways, uh, in the ways that a great, a grossly unequal racial status quo is maintained and managed albeit through race neutral, um, means. Indeed, colorblindness becomes the principle way in which racial hegemony is maintained.

Cheryl Harris:
So, um, the last part here. So if CRT contests the view that race is an irrelevant characteristic, the colorblind account of race which hollows it out, then what does race mean? Um. I wanna suggest that rather than trying to look into the box called race and figuring out what's in there, that we might interrogate what constructs the box. What is, what is it that race does and what is the means to which it is being deployed?

Cheryl Harris:
Race is neither a fiction nor a biologically or genetically based thing. It is a relational construct. We know what is black because we know what is white and vice versa. That operates at both an ideological and material level. The fact that it may shape shift and be invoked in many different ways allows us to see the contingency of the claim of racial colorblindness. Colorblindness is not in the constitution, nor was it inscribed in the founding father's vision. It did not come down from Moses. It is the selected meaning of race that embraces racial eraser as a principle means of maintaining the racial status quo.

Cheryl Harris:
To bring forward a contemporary example from the US domestic context, the story of how the water was poisoned in Flint, Michigan, um, begins with the declaration that the city was not fiscally solvent. It was deeply in debt. It had to be placed under emergency management. The former law authorizing this emergency takeover was race neutral. It set forward criteria that ostensibly had to be met in order for the management to be put in place. The law had been enacted by the state legislature despite the previous rejection by a popular vote, uh, of the same measure. And Flint turned out to be one of the earliest that the state, uh, went after. Detroit was another.

Cheryl Harris:
And at the end of the day, surprise, surprise. The majority of municipalities and municipal corporations that were targeted by this law were black. The deficiencies then and dysfunctions of particular bodies and communities demonstrates their inability to exercise self-governance or fiscal responsibility and then triggers the application of the statute and all of this happens without mentioning race at all. Okay?

Cheryl Harris:
Uh, I'm focused on US law here but I wanna widen the lens a bit and make a couple of claims as I close out. Um, first, uh, colorblindness I think is a trans-national phenomena. Uh, it's reflected in the transference and borrowing of the discourse of colorblindness as racial progress, uh, projects cross national borders so that the same arguments appear tailored to local conditions. Um. Secondly, human rights frameworks are often articulated through normative commitments to colorblindness or the basic idea that race doesn't matter. So when you move into the human rights regime, you don't escape it either because taking account of racial difference or racial subordination, and by the way those are often conflated. That is taking account of racial difference is equated with taking, uh, with racial subordination.

Cheryl Harris:
Um, taking account of racial difference is then deeply disfavored or justifiable only under exception. The only other avenue in which difference can legitimately be taken into account is, um, as an aspect of culture. So here racial logics sometimes travel in the guise of culture. I'm not saying that cultural, there are not cultural practices that are different among peoples. I'm saying that the law's selection of which cultural practices count as such as distinct from which are reified as normal affirms a presumptions of white supremacy.

Cheryl Harris:
Uh, the other point is that the anti-discrimination principle often des- de- uh, defines discrimination through measuring the difference or similarity between raced and gendered others against presumptively neutral based lines which are in fact enmeshed and coded within systems of racial patriarchy. And this is the central insight of CRT's that is expressed in Crenshaw's foundational work on intersectionality, where she identifies the problem of black women's difference from difference. That is, the fact that the courts refuse to allow black women to represent blacks as a whole, or refuse to allow black women to represent women as a whole.

Cheryl Harris:
Why? They were too different from difference. She is directing attention here to the limits of the structure of anti-discrimination law and equality of course, which functions to obscure white normativity and mask the existing baseline, the distribution of power, wealth, money and access to basic life resources that is not race neutral. Concomitant with the, um, colorblindness of law is the law's investment in legitimating and obstructing whiteness. And this is both mask, uh, as a global phenomena. Um, so the central problem then remains, and what I wanna do here is just toss out some things I've been thinking about. What I've been calling a racial technology. Various ways in which racial power is organized to promote or protect the existing distribution resources.

Cheryl Harris:
And I'm doing so in part but, to complicate things and say, oh why complicate things? Um, because colorblindness is an inadequate map. And when you don't have a good map, you're likely to get lost. So, um, here's, um, the taxonomy that I'm thinking about. So one way race operates is through incorporation, forced incorporation, into empire international formation as colonies. So here we could consider American empire, Hawaii, the Philippines, Puerto Rico, all of these, uh, at some p- I shouldn't say Hawaii now, but initially was, uh. All of these were deemed to belong to the United States but are not considered a part of it. So they belong but they're not a part. So that's incorporation.

Cheryl Harris:
Another mode is absorption. Here is the logic of elimination, racial taxonomies of indigeneity in which white ancestry dilutes and absorbs into the whole. We also have exclusion and expulsion. Here we can consider the way in which the regimes of immigration operate through exclusion and expulsion. We also have fourth, separation and segregation. These are internal mechanisms through which race works. They are within the body but separate within it.

Cheryl Harris:
Finally, we have regulation. And here we have the administration's, the administrative states' creation and manipulation of categories. So, um, I, I wanted to just point out the ways in which this gets kind of entangled in US law by talking about quickly two cases, um. One is Morton v. Mancari. Um, in 1974 a non-indigenous employee of the Bureau of Indian Affairs challenged a preference that ga- or challenged a law that gave a preference to indigenous applicants for jobs in the Bureau of Indian Affairs. And he said it was race discrimination.

Cheryl Harris:
The courts said, no it isn't because the purpose of the preference was to, um, advance Native self governance and the preference moreover was not racial because it applied only to members of federally recognized tribes. So in this sense, they said that the preference was political rather than racial. So that seemed to be a win, the preference stands. However, in so doing, it operated to exclude many individuals who are racially classified as Indians but are not part of federally recognized tribes because after all, it's up to the federal government to decide who is a tribe.

Cheryl Harris:
Moreov- So what this does is, it of course completely obscures the questions of sovereignty in colonialism that are embedded in that, um, determination, it moreover technically, the Indian, Indian as defined by the BIA at the time, uh, included both members of federally recognized tribes or those with one quarter Indian blood. So the idea that this was a political, not a racial determination, was actually both, uh, not supported by the actual facts in the case and had this other ideological dimension. Later, we take up a case called Rice v. Cayetano in which a non-native Hawaiian challenged the election procedures for the Office of Hawaiian Affairs that administers programs for native Hawaiians.

Cheryl Harris:
The programs it issue, um, meant that only native Hawaiians could vote for the board of trustees that govern them. And the statute defined, uh, native Hawaiians as descendants of not less than one half part of the races inhabiting the Hawaiian islands prior to 1778 as well as Hawaiians who are descendants of people inhabiting the islands at that time. This was challenged as a racial, um, determination and the court held, uh, agreed with the challenger saying that this ancestral classification was a racial classification. So Mancari did not apply to native Hawaiians, um. And so even though the law was established as part of an effort to, uh, commit, or to make some partial recompense for the illegal seizure of native Hawaiian land and the displacement of native Hawaiian sovereignty, um, native Hawaiians were out.

Cheryl Harris:
So, um, the purpose of simply highlighting these two cases is to point out the unstable dichotomy at the heart of US law, simply because of the ways in which indigeneity sometimes collapsed into race, sometimes distinguished from race, uh. What the court will call racial in one moment it will call political in another. And here we have the problem in which, um, native people have been both constructed as a race and not a race simultaneously.

Cheryl Harris:
Um, indigenous people did not conceive of themselves in racial terms. That was a European imposition. Um, but the conception, um, sort've persist in law that somehow this is an either/or proposition. So, I wanna just close by saying part of the project is to really grapple with this complexity. The times in which we find ourselves are a time of unraveling of traditional forms and structures of politics and power. We're facing the rise of racialized populous politics, both formal and underground, and the mobilization of fear and reaction.

Cheryl Harris:
This suggests that we urgently need to take up every opportunity to share what we have with one another and wade right in. Thank you.

Crystal McKinno:
So, I was thinking about the relationship between critical race and indigeneity and, um, 'cause often in Australia we say indigeneity collapsed into culture, which I think, um, distorts what, what being indigenous is. Um, and how like the process of indigenous people being racialized here in Australia. Um, and how it includes specificity, specificity of indigeneity gets followed up by race as well. Um. So I'd love to hear your thoughts about the relationship, both of you, between critical race and indigeneity.

Cheryl Harris:
Well, I think, uh, as the last part of my comments suggested, um, part of what's going on is a kind of dichotomous conception of identity which is either one is located in this box or, or the other. Um. Treating one as a kind of natural category and the other as a kind of constructive category when both are actually constructed.

Cheryl Harris:
Um, that doesn't mean that, um, there aren't moments where, that doesn't mean that these aren't real. Um, the fact that they're constructed doesn't mean that they're real. But it does mean that there's a kind of, at least in US law, I'm not familiar with, um, Australian law enough to, to talk about it. But there is a profound kind of confusion, um. And I don't think it's actually just confusion. Oh, I should it more specifically. A kind of obscuring of the fundamental question at the heart of this, which is I could've e- even mentioned another case, the [Mashbi 00:44:40] case which I'm sure Mark knows. In which the insanity of this case is that the Mashbi are attempting to invoke a law that protects, uh, the conveyance of property to, uh, a, indigenous property from conveyance to non-indigenous people.

Cheryl Harris:
Um, they lived in this community and for some time and the court decides that they're not a tribe because they've been assimilated into marry and are, are not, are insufficiently distinctive to, to be considered a tribe by the court. Now somehow what's lost in all of this is the actual power relationship in which the court itself is determining who constitutes a colonizable tribe. So, um, I can say just from the US context that there's a lot of ways in which that, those categories are manipulated around the central question of colonialism, which is really just not, you know, when they talk about colonies in the United States, they don't (laughs) mean colonialism. They mean the original 13 colonies, right?

Mark McMillan:
Hm.

Cheryl Harris:
They're not, they're not, they're not talking about the ways in which America itself went through and continues to exercise the kind of process of colonialism over indigenous people.

Mark McMillan:
And it's the lessons that we've got to learn to bring, um, what indigeneity is as, aboriginality and a- also to reinscribe it back to its racialized origins.

Cheryl Harris:
Mm-hmm (affirmative).

Mark McMillan:
Australia's got a practice of actually trying to pull them apart. And when we actually look at the constitutional recognition alignment that we're all engrossed in, everybody's saying we've gotta take out the racist power as if for some reason that we, it's our first time that we're actually recognizing that we've actually got a race problem in Australia. That most people don't understand that our foundation as a nation is imbued and embraced in racialized hierarchy. So even if you actually understand the construction of section 151.26 for the constitution, it is actually the exclusion of aboriginality as race and inscribes everything that is not white and also not aboriginal as covered by the race's power and its possibilities.

Mark McMillan:
And then you had years of practice that led to 1967, which only allowed the commonwealth now to actually treat and make laws with respect to aboriginal [inaudible 00:47:07] peoples as racialized other. So you've got, we've got these schizophrenic practices and then now we're at these, the forefront of, oh it's really important that Australia gets rid of the racist power 'cause that's bad, without actually doing the work of critical race theory which is saying, how is it that you can even have a conversation with yourself that race is now bad when while you're at the same time saying you've used racialized constructions to get yourself to the point of race is bad?

Mark McMillan:
So it is kinda (laughs)-

Cheryl Harris:
Yeah.

Mark McMillan:
... a weird practice that Australia has really embarked on and embraced with gusto, uh, because we've now got a other problem of race and color and blackness emerging which is the, now the who gets to actually form solidarity in racialized otherness? And what I'm specifically talking about is, um, how people of color in Australia, what is black is Australia, has taken on a new understanding and a new opportunity to understand solidarity of color or other, um, through critical race theory.

Mark McMillan:
So we've got a lot going on in Australia that comes from how aboriginality has been disassociated. One of those mechanisms has been, well aboriginality is culture and that's different from race. But it's the work that we're sort've, and don't forget people like Fowley and a lot of other, our political activists over many, many year have engaged with African American, um, not just struggles but physically engaged with African Americans as experiences of trying to understand racialized othering as structure and process and colorblindness.

Cheryl Harris:
Mm-hmm (affirmative).

Mark McMillan:
So we're doing a lot, I reckon.

Crystal McKinno:
Well ... I turned myself off. Now I'm back on. Um.

Mark McMillan:
(laughs)

Crystal McKinno:
(laughs) Um. And one of the things I was thinking about too in terms of activism, um, is I know on the, in the world outside of the universities, not that they're mutually ex- exclusive but, um, you know, activists in, here in Melbourne I think do a lot of work together from the War, like, um, War is the aboriginal resistance and Rise, which is, um, refugee and, um, asylum seeker, um, activist group as well. Um, we were talking earlier, Cheryl and, um, Marlene Archer who, her wonderful law extraordinaire friend as well. We met with, um, [inaudible 00:49:41] Legal Center the other day with young people doing activism there.

Crystal McKinno:
Anyway, I was thinking about the bridges between different communities, um, working together outside but I don't know if we do it particularly well within the academy. Um, so I was wondering about how we form intellectual bridges between aboriginal and black struggles and African American struggles and Native American struggles and how we can build those intellectual bridges. Or, I don't know. What do you think about building the bridges, or? (laughs)

Cheryl Harris:
Well. I, I guess I would say, um, you know, it was a fascinating conversation and I really wanna thank Linda Gayle for helping us, um, put it together. Uh, because it was a lot of resonance, um, in terms of the, the ways in which I think we traditionally think about intellectual work is its separation from, um, sort've the real world. Um. But I think part at least of the project of critical race theory, not withstanding the fact that theory's in there, right, (laughs) is to actually try to move from a different epistemological position from one which actually looks at the conditions, a- and tries to think through what are the conditions telling us about the structures of knowledge, power and everything else.

Cheryl Harris:
And I think that, uh, young people everywhere, both here and in the United States, um, are recognizing something that I was trying to allude to at the end, which is the unraveling of a certain kind of liberal consensus, uh, which in and of itself has had its own problems. But what that loosens in its wake, uh, is, uh, I mean how do we get from Obama to, uh, Trump in a flip? One of the, one of the, uh, ways in which people will, uh, seem quite confounded by that, and believe me I, I, I'm not suggesting that oh I knew that was gonna happen. I'm, I foresaw all of that. I'm, you know, all seeing. Uh, no.

Cheryl Harris:
But what I, in retrospect what I think one can see is that the seeds of, um, white nationalism were already planted within the kind of arguments around colorblindness. And it's no accident that the Black Lives Matter movement arose during the period when Obama was actually president. Um. This reflected the fact that the, uh, the electoral victory of, uh, Obama, which itself was a part of a huge mobilization of people of color and of young people, did not displace the structure of racial power. Um, despite the fact that it raised certain expectations that it would be able to do so.

Cheryl Harris:
And what was happening on the ground during the time of the Obama years was the same thing that had been happening before, which is that black people were dying, uh, at the hands of the police. Uh, and we just didn't know their names unless we lived in the areas in the communities where it happened. What Black Lives Matter did was to say, we are not accepting this as normal. Uh, that, and, uh, we will actually resist the notion that these deaths can remain anonymous. Um, and that they're just individual deaths.

Cheryl Harris:
Uh, that they're actually, and as you can see from what has happened there is a range of kind of, uh, interfaces actually between scholar activists, uh, community activists, prison abolitionists and others who are trying to take the tools of knowledge that we have and build new knowledge, um, that meets the times I guess in which we're, we're situationed.

Mark McMillan:
I think one of the things that we actually have learned in the academy, um, is the ability of the experiences of our lea- our lived experiences places on people of color and otherness. The responsibilities and obligations not to just perform in the academy as if our very existence isn't disruption or it's not disruption enough. That we've actually got to think of we're not merely participating in knowledge systems but our lived experiences as being other now carries it with obligations to actually say that that knowledge system itself is the source of interrogation not m- not merely permittivity that a lot of us expect.

Mark McMillan:
Um. A good example of that is, uh, I'm the first aboriginal elected chair of the academic board. Now I put aboriginal in there for a reason, which is I now have obligations not to perform as a non-aboriginal person as chair of academic board. So it's not merely oh look at us, we've got a ch- an, a chair that is aboriginal. Pat, pat, pat, aren't we good for electing that person? It is about the responsibilities that people of color in the academy now take and this is the work of Cheryl and Kimberle Crenshaw. We've got obligations so to actually understand how our experiences, um, are not just intersectional. It requires obligations to make the changes at that knowledge production level and not merely to perform within it, uh, as I'm just happy to me ... uh, I wanna behave like a white person, a white male.

Mark McMillan:
Rather then we've got obligations. And I think, you know, this is the work of critical race studies is actually not just merely to say, I can occupy a position of color, but the responsibility to color then to dismantle the very thing that allowed you to exist in that way by demanding that you be the same. So it's actually, these bridges of solidarity and experience is now what is being shared a lot more. Not just technologically but, you know, critical race is theory and practice with the academy is now, you know, Cheryl coming here not for the first time. Um, other people of race and, or racialized other going to the heart of where the theory is, talking about the experiences of being, okay in the academy and then going back to the, that place and actually redeploying is bridge making.

Mark McMillan:
And it's bridge making with depth. Like there's a really solid foundation. So we are trying to do a lot. But you, your main question about, it is, it's interesting how it's, there's a big shift between young scholars taking you the fights that when Cheryl and Kimberle and, and, and others were, this is an embryonic thing. A generation has occurred where it's now young scholars and I have to say again, probably disproportionately young black women having to take up the experiences, um, and deploying them quite actively in a way on mass, um.

Mark McMillan:
So I think that what, uh, just observing you seeing within younger people of color and indigenous as racialized other. Um, taking and applying a fight that we thought we theorized or Cheryl and Kimberle theorized now we actually got to go into the practice. And that's really cool. (laughs)

Cheryl Harris:
Yeah. We're getting old. (laughter)

Crystal McKinno:
Um, I wanted to draw out a little bit about the concept of reimagining justice because Cheryl, I know you've been involved in educational prot- uh, projects within prisons. Oye, don't leave.

Cheryl Harris:
You could also say protests.

Crystal McKinno:
(laughter) Educational projects in prisons. Um. And I'd love to hear more about those projects, and Mark as well. Um, what role do you think the universities have in addressing, both of you actually, what roles do you think the universities have in addressing some of the inequalities in society that so often academics, we talk about things like over policing, um, mass incarceration? You know, those sorts of things. But, you know, what role does the university have in terms of like, on the ground addressing those?

Cheryl Harris:
Yes. I think it's a really crucial question. I mean, one of the things as I mentioned, that the movements, um, have lifted up is again, the refusal to accept the mass incarceration of our people as normal. Right? Uh, it's just acceptable. And, you know, I saw some of the statistics from here which are equally as, if not more, uh, frightening and compelling. Um. And the thing that I was mapping in the paper itself was how far back this goes, right?

Cheryl Harris:
The, and how the use of debt, uh, is itself a means of crimi- of criminalizing people, um, and the use, you know, petty offenses and so forth. Um. So it seems to me that, um, you know, one comes to the question of whether or not these processes can be reformed. And, you know, out of this comes the, a critique for prison abolition, which I think is at its core a, a challenge to the idea that this system can be reformed.

Cheryl Harris:
And when you think about how far back it goes historically, the way in which one form is outlawed and is, uh, seceded by another form and another form and another form, this does start to pose, I think, a real serious challenge. At the same time, I think that if we think about the imperatives of the here and now, um, certainly in the context of California, um, s- during the 20 years that I've been at UCLA Law School, uh, we've seen a decline in the number of black students enrollment for a number of reasons including, uh, um, provision in the c- that was enacted, um, some 20 some years ago, um, that precludes considerations of race in admissions. That con- in conjoined with the increasing cost of college education as well as mass incarceration has meant that fewer and fewer people can fit through the funnel.

Cheryl Harris:
Uh, Marlene and I have talked about this at length. And so, now the question is, where are our young people? Uh. Our young people are in juvenile hall. Are young people, when they get to a certain age, they're in, uh, they're being locked up for these misdemeanors. These misdemeanors become criminal convictions that are disqualifying for them to, uh, obtain college loans. Et cetera, et cetera, et cetera, et cetera.

Cheryl Harris:
Um. And so one of the things that, um, several years ago I was privileged to be acting chair of the Department of, um, Black Studies at UCLA. And some of us were thinking about this problem and thinking that we needed to take some different models that took the idea of education beyond the walls of the university itself. And, um, began to think about what would a critical education actually mean and entail? And so we were successful in recruiting, um, a colleague to come who had extensive experience in prison education programs.

Cheryl Harris:
Um. And one of the things that we started, this is not, uh, unusual, uh, uh. UCLA is certainly not the only one to do so. There are several other universities that have actually tried to make a commitment to this. But, um, to actually start to, uh, utilize the infrastructure of a university in ways that actually reach to the community where it is. And obviously as I said, this isn't going to solve the problem of over-incarceration. This isn't going to solve the problems of police abuses. But it actually does mean that it, um, takes the, takes the idea that only certain people are entitled to education and challenges that notion. And recognizing that, um, one of the responsibilities, at least of a public university like UCLA, is to address this question.

Cheryl Harris:
So, um, it's something that I think is important to consider. Um, I don't know, you know, what the possibilities are in a place like this one but it's certainly, I think, one to, to think about and explore.

Mark McMillan:
And taking that opportunity about what is the role of a public university in, in addressing this, and I think what we're also starting to see is how ill equipped we are for who carries the burden of actually solving the wicked problem, um, in the universities. And how the, the, as public institutions, we've got to actually o- unpack our own culpability in knowledge. Like, knowledge actually and knowledge production, reproduction has got us to this moment of which the universities were front and center as the thought leadership of ... Every time we thought we were innovating or creating knowledge, of which the, the social conditioning of which aboriginal disadvantage is so n- so pronounced and it's unwilling ... The, the, the site of the knowledge production is so ill equipped to actually understand seeing that it is actually a problem in, um, understanding how it's got us as a society to this place or the conditions.

Mark McMillan:
And so it's trying to understand we've got obligation to the public to actually participate in overcoming the social, uh, disadvantages or the conditions in which aboriginal and people of color and immigration more generally in, in th- in the current conditions that are swirling around in the last week or so, uh, about making the universities obligated. Not merely it's a feel good and must do.

Cheryl Harris:
Mm-hmm (affirmative).

Mark McMillan:
And when you actually look at the enabling legislation for Victorian universities, one of the objects of, that we must have, uh, must achieve is social justice. So, wh- who better place to actually take up the [codules 01:04:17] of solving the problems that we actually participated in than public universities? And RMIT in particular. But when it comes to, um, sorry this is taking a little bit longer than I'd imaged to unpack it, but it's, we're now at the stage of where we, people are desiring a critical mass of aboriginal people in the universities to solve the issues of over-incarceration, engagement as if we're actually part of the problem.

Mark McMillan:
Um, when in fact we participate in actually how do we support aboriginal community members, whether they're in jail or in, on remand or just in community about how does the university best support their educational outcomes or participate itself as, which is the, the opposite of being in the funnel. We've actually, we've gotta be the conduit back into community wherever that community is. While at the same time, actually getting the institution itself to unpack and own its complicity about ongoing knowledge production that is re inscribing the social conditions of which aboriginal disadvantage is not just, uh, dissipating. It's actually constricting.

Mark McMillan:
You know, we've had 10 years of close the gap. Indigenous incarceration is off the Richter scale to the point where we've got now aboriginal [inaudible 01:05:39] people being incarcerated at rates that led to a royal commission 30 years ago but yet we're not alarmed by it. But where's our culpability as a public institution? Similarly, the removal of aboriginal children from their families is now at rates higher than, uh, during most of the generations that were subject to child removal for no other reason than you're aboriginal.

Mark McMillan:
And yet, we're not participating in it. We are as a public institution, participating in the ongoing social conditionings where it's actually accepted. So we've got to be able to do more. That was a long wind, it's not a backhander. It's actually saying, this is actually much more complex than saying what is the role of the university? What, and aboriginal and [inaudible 01:06:26] scholars and people of color are actually in there trying to actually say, look we've still got, we've gotta do two things now. You want us to support and be part of aboriginal and [inaudible 01:06:37] community, overcoming it just by mere existence. And also take up the burden that you've put on us of having to solve you as a problem. (laughter)

Mark McMillan:
Um, so. Uh. All in the pursuit of social justice. Uh, so who is actually being let off the hook here?

Cheryl Harris:
Mm-hmm (affirmative).

Mark McMillan:
Which is a sort of knowledge production. So we're learning lots of lessons from Cheryl (laughs) and others about how you, and 'cause I think that's the important thing about the critical race practice. It isn't merely just, oh well this is wrong and that's wrong and you gotta do more. It's actually you, uh, being with Cheryl and others is to, how do you even start to ask the questions or to frame how we might respond in public institution and as a matter of public accountability and public management?

Crystal McKinno:
This is slightly off script but, um, I was thinking, um, (laughs) about when you were just talking about the role of debt and criminalization.

Cheryl Harris:
Yeah.

Crystal McKinno:
And petty crimes and criminalization where in Australia we're seeing, um, and then also that these deaths of people at the hands of the police or corrections or that sort of thing often goes unnamed and un, you know, like the, unless you're in those communities, you know, you don't remember those names. But increasingly, this is a two point ... Increasingly we're seeing activism, um, and also solidarity activism.

Cheryl Harris:
Mm-hmm (affirmative).

Crystal McKinno:
Or it's not just indigenous communities. It's indigenous communities and allies, um, you know, fighting to remember the names of people who have died in incarcer- who have been incarcerated for things like public drunkenness with [inaudible 01:08:11] court this week. Um, [inaudible 01:08:14] was in Western Australia who is incarcerated and died in custody because she was, um, for fines.

Cheryl Harris:
Mm-hmm (affirmative).

Crystal McKinno:
You know, these sorts of, um, matters. So like also the, the, the other end it's not, you know, criminalization that results in death. It's all, all a part of the thing as well. So I was just thinking your thoughts.

Cheryl Harris:
Yeah. I mean, I think one of the things that we have to recognize is that, um, while the particular forms of domination, you know, are shaped to local conditions, uh, there's ways in which these logics are, uh, I guess I would say, uh, deeper than the local conditions. There's a reason why for example, the very phenomenon that you just described of somebody getting arrested for a petty crime, not being able to pay the fine, incarcerated and then the story goes on from there.

Cheryl Harris:
This is very much the story of Sandra Bland in the United States. Young bla- African American woman who was stopped for a traffic offense and ended up dead in custody. Um, we could name all of these, all of these things and the question is, if you see these kinds of practices sort of reproducing themselves across national borders, what does that tell us about the nature of colonialism? What does that tell us about the nature of racial structures?

Cheryl Harris:
These are not accidental. They are extractive practices, um. And even though these are, uh, pulling from what ostensibly are the poorest communities and the poorest among us, um, there's a way in which it's precisely because the community is, is precarious that makes it available for this kind of extraction. So what happened when Michael Brown was killed in Ferguson, uh, and what the activists were able to lift up, is, um, that Ferguson itself had established a, a means of revenue extraction from, uh, the black community there through a process of heavy fines or, or petty, petty crimes, fines, et cetera. Creating what was a debtor's prison, which is ostensibly supposed to be illegal.

Cheryl Harris:
You know, and not supposed, you're not supposed to be some old, English 13th, 14th century stuff. But here we are reproducing it in highly specific racialized forms over and over again, despite the prescription of law. And that suggests something about the fundamental nature of the problem, um, and the ways in which saying names, refusing the anonymity, refusing the normalization, um, seeking to disrupt the story that somehow this is just a process of, of, of an unfortunate, isolated tragedy is really crucial.

Cheryl Harris:
And I think each time, there isn't anything that erases that pain. There isn't anything that can, um, um, [aswash 01:11:23] that trauma. Uh, so I, I don't wanna in any way suggest that the political mobilization in and of itself, um, can directly address the ways in which our communities are constantly traumatized by this. Um, for those of us that, you know, live in the world and are connected to people, um, wh- we, we have to confront the fact that we fear for ourselves and our families traversing the world like this. This, this is, this is actual, you know, every day ways in which we have to confront, uh, uh, the situation. Uh, some of us being more vulnerable than others by virtue of our genders, sexuality, et cetera.

Cheryl Harris:
But I say all that to say that I think that one of the things that we do have is the ability to first of all, um, resist the notion that this is normal. Uh, or that we should accept this as normal. Uh, and begin to name it in these powerful ways. Um, because, um, the situation demands it, at least.

Mark McMillan:
That's a mic drop moment.

Crystal McKinno:
(laughter) Um. I'm aware of time. Um, so we wanted to try and end, um, on a positive-ish note, a positive note. (laughs) Um, talking about, 'cause I was thinking, um, listening to your talk as well about the role of student activism and bringing these, um, bringing these things to light I guess. Um. Um. And the role of student activism and the fight for critical race studies, um, to be taught by black people, you know, that, the importance of that. The importance of it even being considered a field in the first place I guess.

Crystal McKinno:
Um, and also when you were talking, um, I was thinking about the role of mentors and the roles of, that black and indigenous people have within the academy to not only lead by example but lift up others and younger people around, you know? Um, 'cause I was thinking when you were talking that, um, that Derrick Bell taught Kimberle Crenshaw and Richard Delgado. Like, you know, the founder of intersectionality. (laughs) You know.

Cheryl Harris:
Mm-hmm (affirmative).

Crystal McKinno:
Like these really incredible, world changing theorists. And, you know, the connections to you as well and other world changing theorists, you know. It, it, it's incredible. And, um, I was wondering if you had any thoughts on student activism mentoring the roles of ...

Cheryl Harris:
Mm-hmm (affirmative).

Crystal McKinno:
What's, what's our obligations I guess to our communities and their, to, to our communities when we're in the academy and also to continuing those struggles and fights?

Cheryl Harris:
Yeah. I think the story about, um, to some degree, tying back to what Mark was talking about. About, um, the ways in which institutional knowledge is produced and who gets named a problem, um, means that, um, in many ways, um, and that's when I use the world infiltrate. The, in many ways, when, when some of us find ourselves in these spaces, um, the, um, the challenge is not to, not to accept the narrative that we are there by the exception.

Cheryl Harris:
Uh, or that we are there by virtue of grace or that we are there by virtue of, of some, um, yeah. I mean, uh, I used to say this at some point. You know, the no- I was the first black person hired at the first law school that I taught before I went to UCLA Law School and I, I'm not that old. I started teaching in 1990. I guess that's kinda old. I'm not ... (laughter)

Cheryl Harris:
Uh, and when I arrived, I mean what I had to say was, you know, I'm not the first smart black person. (laughs) You know, there were a lot of other people that could have and should have been here. Uh, and so therefore I can't accept the notion when people were patting me on the back saying, "Oh you're really great. You're really smart." I'm like, hm, okay. But that is sort of ignoring the systemic ways in which there is a whole body of knowledge and people that were, on which I was standing whose names I didn't even know.

Cheryl Harris:
Um. And so I say all that to say that, um, part of the task when you say student activism is, I think it, it begins with resisting the idea of buying into the notion that one is an acception. Um. And recognizing that there is a, um, way in which the very presence in the institution itself brings with it disruption. One can try to accommodate it. One can try to fit in. It kinda doesn't work. Uh, and so (laughs) you know, you can try. But my experience is that, you know, people say the darnest things. (laughter)

Cheryl Harris:
And so, uh, it's not, and do, right? And so it, it, it suggests that in order not to internalize all that, uh, that building some community is crucial. And believe me, regardless at least my experience in all these years, one doesn't have to look for something to protest. (laughs) Something will come along. Uh. Something will happen, some circumstance, something will present itself. And so the question is really again, not to internalize that. And to recognize the ability that we each have, uh, in our own time, in our own moment, to contribute to the broader, the broader good. So yeah.

Crystal McKinno:
Okay. Um. Thank you everybody for coming. Um, I'd like to, you to join me in thanking Cheryl and, and also Mark. (laughs) Um.And please to, um, come and say hi. I'm sure she would love to speak the you more.

Cheryl Harris:
Thank you.