Professor, UF grad returns to discuss LatCrit legal scholarship movement
A grey, collarless shirt fits snugly to his slim, athletic build, and his salt-and-pepper hair is tied up in a pony tail as Francisco Valdes (JD 84) backs away from the lectern, then shifts on his heels and paces forward.
He extends his arms to his left and grabs the ideas hanging there; he reaches to his right, grasping the historical figures who loiter nearby. These phantoms were Valdes’ dancing partners as the University of Miami law professor lectured Monday, Nov. 15, to a group of faculty at the University of Florida Levin College of Law.
Valdes, 55, returned to his alma mater to speak to faculty and students as founder and a leader for 15 years of the LatCrit legal scholarship movement, which attempts to expand the bounds of law beyond what Valdes sees as the “conventional, domestic-only, unidimensional” confines of race, gender or sexual orientation.
“It is an effort to instill the consciousness and the practice of coalitional analysis and politics — and action,” he explained.
Valdes believes LatCrit has influenced legal scholarship by conducting conferences that promote the work of junior scholars rather than senior ones, by helping students lay the groundwork for entry into the academic world and by highlighting the cooperative nature of legal research.
“We’ve tried to promote the idea that scholarship is produced in tandem with others — the ‘democratic’ exchange of ideas, not the ‘imperial scholar’ sitting alone in your room,” he said.
In the practical world of politics and judges, Valdes called the elevation of Justice Sonia Sotomayor an important landmark, but whether she will make a substantive contribution to the law is yet to be determined.
“She is the first woman of color ever to be on the Supreme Court,” Valdes said. “Beyond that, which is to some extent symbolic, the jury is out.”
And while LatCrit’s name points toward legal scholarship of problems facing Latinos (or as Valdes would have it “Latinas/os”), Valdes said the scholarship is intentionally “borderless.”
The January 1995 issue of the California Law Review was devoted exclusively to Valdes’ widely cited work, “Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of ‘Sex,’ ‘Gender,’ and ‘Sexual Orientation’ in Euro-American Law and Society.” The work also represented Valdes’ dissertation for his doctorate of law from Stanford Law School.
UF Law Professor Berta Hernández-Truyol, who has worked with Valdes to spearhead the rise of LatCrit as an academic movement, noted the difficulty of placing an article in the California Law Review, let alone having an entire issue devoted to one’s work.
“Frank is a key figure in the critical legal movement touching on race gender, sexuality, queerness, gender, religion, class – all of the axes on which people are or can be subordinated,” Hernández -Truyol said.
The goal of LatCrit is to oppose the subordination of groups through legal policy and social action, he said. Valdes notes that laws “discriminate” or “differentiate” as a matter of course: Certain people are allowed to enter the men’s bathroom; others are allowed to enter the women’s. It is when rules and laws structurally or systematically subordinate one group to another that they fall afoul of justice. And justice, Valdes says, is his animating mission.
On Monday, Valdes glided among the ideas and characters of American constitutional law and history to explain his theory of anti-subordination as integral to the original Constitution. It is the idea that the Founding Fathers developed the structures of the document — the separation of legislative and executive powers, the division of federal and state responsibilities — in a bid to protect any one group from being structurally subordinated by any other, and to prevent the establishment of a caste system in the new republic. At that time, it was meant to protect Southerners from being overwhelmed by Yankees and vice versa, the rich from the poor, plantation owners from merchants.
Valdes emphasizes that at the time of the founding documents, the policies applied to a narrow polity —mainly white property-owning males in the different ex-colonies. But as the polity opened up after the Civil War with passage of the 14th Amendment, including its Equal Protection clause, the word equality enters the Constitution and the notion of anti-caste or anti-subordination was made textually explicit for all groups in society.
Valdes is a left-wing scholar, but he puts forward an originalist argument — more often associated with conservative legal analysis — to help correct what he considers to be the distortion of Equal Protection jurisprudence.
It is with originalism that Valdes hopes to persuade judges to abandon an interpretation of the Equal Protection clause that leads to Supreme Court victories almost exclusively by white people who file suit under the 14th Amendment to stop, as he says, “democratically adopted remedies for invidious discrimination.” He explains that “reverse” discrimination plaintiffs wrongly win these cases because of judicial conflation of remedial or “antisubordination” discrimination with “invidious” discrimination — or subordination itself. Valdes cites the pervasive and entrenched socioeconomic advantages of whites in American society as “evidence” against claims that they are structurally or legally subordinated.
And while he has hopes for social change, Valdes does not expect it to come over night.
“Legal scholarship is never about changing the world tomorrow but about changing the world over time. So, whether it’s LatCrit or anything else, the project in legal scholarship cannot be about the social results you personally can see in your own lifetime but about helping to chart a path towards them,” he said.