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63 U. Cin. L. Rev. 269 (1994-1995)
Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law

handle is hein.journals/ucinlr63 and id is 279 raw text is: OUT OF THE WHITENESS: ON RACED CODES AND
WHITE RACE CONSCIOUSNESS IN SOME TORT,
CRIMINAL, AND CONTRACT LAW
Amy H. Kastely*
Some will tell you light is goodness
And black is grief and sin
But white is terror, sickness, burning
And dark's the color of my skin
Shawna1
What I propose here is to examine the impact of notions of racial
hierarchy, racial exclusion, and racial vulnerability and availability
on nonblacks who held, resisted, explored, or altered those notions..
• to see what racial ideology does to the mind, imagination, and be-
havior of masters.
Toni Morrison2
Talking about race has become synonymous with violating the rules.
It doesn't matter how quietly or how eloquently you speak, the policy
is Don't Ask, Don't Tell.
Lani Guinier
* Professor of Law, St. Mary's University School of Law. B.A., 1973, University of Chi-
cago; J.D., 1977, University of Chicago. I wish to thank my friends and colleagues Barbara
Aldave, Yvonne Chereno Pacheco, Christine Dahilig, Elise Garcia, Marsha Huie, Judy Scales-
Trent, Deborah Post, Judy Weightman, and Janice Weir for conversation and inspiration re-
garding this essay.
1. SHAWNA, Dark and Light, on CHOSEN VIEW, BEAUTIFUL (Threadgoode Music 1993).
This essay respectfully and affectionately echoes the song of my friend Shawna.
2. TONI MORRISON. PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINA-
TION 11-12 (1992) [hereinafter PLAYING IN THE DARK].
3. Lani Guinier, Address to the Association of American Law Schools Section on Minority
Groups Luncheon (Jan. 6, 1994) (cassette recording available from Recorded Resources Corp.,
Millersville, Md.).
In a strange way my nomination came to symbolize the state of denial in
which we find ourselves on issues of civil rights in particular and of race in gen-
eral. America has nothing against individual blacks, browns, or Asians. Americans
support the advancement of individual black, brown and Asian achievers. The
President is committed to a cabinet that looks like America .... But when it comes
to discussing race, our policy comes close to the one on gays in the military: Don't
Ask, Don't Tell, Don't Pursue.
Talking about race has become synonymous with violating the rules. It
doesn't matter how quietly or how eloquently you speak, the policy is Don't Ask,
Don't Tell. In the name of race neutrality, traditional Democrats don't want to
talk about race any more. Instead they talk in loaded, coded, euphemisms about
drugs, about welfare, and about crime.
Id.

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