Critical race theory

Early analysis that later consolidated into CRT developed in the 1970s as legal scholars, activists, and lawyers tried to understand why civil rights era victories had stalled and were being eroded.[14]

In the early 1980s, students of color at Harvard Law School organized protests regarding Harvard's lack of racial diversity in the curriculum, among students, and in the faculty. These students supported Professor Derrick Bell, who left Harvard Law in 1980 to become the dean at University of Oregon School of Law. During his time at Harvard, Bell had developed new courses that studied American law through a racial lens that students of color wanted faculty of color to teach in his absence.[15]

However, the university ignored student requests, responding that no sufficiently qualified black instructor existed.[16] Legal scholar Randall Kennedy noted that some students felt affronted by Harvard's choice to employ an “archetypal white liberal...in a way that precludes the development of black leadership”.[17] In response, numerous students, including Kimberlé Crenshaw and Mari Matsuda, boycotted and organized to develop an "Alternative Course" using Bell's Race, Racism, and American Law (1973, 1st edition) as a core text. They included guest speakers Richard Delgado and Neil Gotanda.[18][19]

Critical Race Theory emerged as an offshoot of critical legal studies in 1980s. The first formal meeting centered on the term was the "New Developments in Critical Race Theory" workshop, an effort to connect the theoretical underpinnings of critical legal studies to the day-to-day realities of American racial politics. It was organized by Kimberlé Crenshaw to attend a retreat entitled "New Developments in Critical Race Theory" that effectively created the field. As Crenshaw states, only herself, Matsuda, Gotanda, Chuck Lawrence, and a handful of others knew "that there were no new developments in critical race theory, because CRT hadn't had any old ones – it didn't exist, it was made up as a name. Sometimes you gotta fake it until you make it." Crenshaw states that critical race theorists had "discovered ourselves to be critical theorists who did race and racial justice advocates who did critical theory."[20][19] Crenshaw writes, "one might say that CRT was the offspring of a post-civil rights institutional activism that was generated and informed by an oppositionalist orientation toward racial power."[18]

One manner in which CRT diverged from CLS post-1987 was CRT's stress on the importance of race. Though CLS criticized the legal system's role in generating and legitimizing oppressive social structures, it did not tend to provide alternatives. CRT scholars such as Derrick Bell and Alan Freeman argued that failure to include race and racism in its analysis prevented CLS from suggesting new directions for social transformation.[21]

The 1989 CRT workshop at the University of Wisconsin-Madison, attended by 24 scholars of color, marked a turning point for the field. Following this meeting, scholars began publishing a higher volume of works employing CRT, including some that became popular among general audiences. In 1991, Patricia Williams published The Alchemy of Race and Rights, while Derrick Bell published Faces at the Bottom of the Well in 1992. Both became national best sellers.[18]^:124

In 1995, Gloria Ladson-Billings and William F. Tate began applying the CRT framework in the field of education, moving it beyond the field of legal scholarship. They sought to better understand inequities in the context of schooling. Scholars have since expanded work in this context to explore issues including segregation, relations between race, gender, and academic achievement, pedagogy, and research methodologies.[22]^:366

As of 2002, over 20 American law schools and at least 3 non-American law schools offered critical race theory courses or classes which covered the issue centrally.[23] In addition to law, critical race theory is taught and applied in the fields of education, political science, women's studies, ethnic studies, communication, sociology, and American studies. A variety of spin-off movements developed that apply critical race theory to specific groups. These include the Latino-critical (LatCrit), queer-critical, and Asian-critical movements. These other groups continued to engage with the main body of critical theory research, over time developing independent priorities and research methods.[24]

Major themes that are characteristic of work in critical race theory, as documented by such scholars as Richard Delgado and Jean Stefancic, include:

• Critique of liberalism: CRT scholars favor a more aggressive approach to social transformation, as opposed to liberalism's more cautious approach; a race-conscious approach to transformation rejecting liberal embrace of affirmative action, color blindness, role modeling, or the merit principle; and an approach that relies more on political organizing, in contrast to liberalism's reliance on rights-based remedies.[27]
• Storytelling, counter-storytelling, and "naming one's own reality": The use of narrative (storytelling) to illuminate and explore experiences of racial oppression.[28] Bryan Brayboy has emphasized the epistemic importance of storytelling in Indigenous-American communities as superseding that of theory, and has proposed a Tribal Critical Race Theory (TribCrit).[29]
• Revisionist interpretations of American civil rights law and progress: Criticism of civil-rights scholarship and anti-discrimination law, such as Brown v. Board of Education. Derrick Bell, one of CRT's founders, argued that civil-rights advances for black people coincided with the self-interest of white elitists. Likewise, Mary L. Dudziak performed extensive archival research in the U.S. Department of State and Department of Justice, including the correspondence by U.S. ambassadors abroad, and found that U.S. civil-rights legislation was not passed because people of color were discriminated against. Rather, it was enacted in order to improve the image of the United States in the eyes of third-world countries that the US needed as allies during the Cold War.[30]
• Intersectional theory: The examination of race, sex, class, national origin, and sexual orientation, and how their combination (i.e., their intersections) plays out in various settings, e.g., how the needs of a Latina female are different from those of a black male and whose needs are the ones promoted.[31]
• Essentialism vs. anti-essentialism: Delgado and Stefancic write, "Scholars who write about these issues are concerned with the appropriate unit for analysis: Is the black community one, or many, communities? Do middle- and working-class African-Americans have different interests and needs? Do All oppressed peoples have something in common?" This is a look at the ways that oppressed groups may share in their oppression but also have different needs and values that need to be looked at differently. It is a question of how groups can be essentialized or are unable to be essentialized.[32]
• Structural determinism: Exploration of how "the structure of legal thought or culture influences its content," whereby a particular mode of thought or widely shared practice determines significant social outcomes, usually occurring without conscious knowledge. As such, theorists posit that our system cannot redress certain kinds of wrongs.[33]
• Empathetic fallacy: Believing that one can change a narrative by offering an alternative narrative in hopes that the listener's empathy will quickly and reliably take over. Empathy is not enough to change racism as most people are not exposed to many people different from themselves and people mostly seek out information about their own culture and group.[34]
• Non-white cultural nationalism/separatism: The exploration of more radical views that argue for separation and reparations as a form of foreign aid (incl. black nationalism).[28]

White privilege is the belief in the notion of myriad social advantages, benefits, and courtesies that come with being a member of the dominant race (i.e. white people). For example, a clerk not following a person around in a store, or people not crossing the street at night to avoid a person, are viewed as white privilege.[35]

Cheryl I. Harris and Gloria Ladson-Billings describe this notion of whiteness as property, whereby whiteness is the ultimate property that whites alone can possess; valuable just like property. In this sense, from the CRT perspective, the white skin that some Americans possess is akin to owning a piece of property, in that it grants privileges to the owner that a renter (in this case, a person of color) would not be afforded.[36] The property functions of whiteness – i.e., rights to disposition; rights to use and enjoyment, reputation, and status property; and the absolute right to exclude – make the American dream more likely and attainable for whites.

Karen Pyke documents the theoretical element of internalized racism or internalized racial oppression, whereby victims of racism begin to believe in the ideology that they are inferior to whites and white culture, who are superior. The internalizing of racism is not due to any weakness, ignorance, inferiority, psychological defect, gullibility, or other shortcomings of the oppressed. Instead, it is how authority and power in all aspects of society contributes to feelings of inequality.[37]

Camara Phyllis Jones defines institutionalized racism as the structures, policies, practices, and norms resulting in differential access to the goods, services, and opportunities of society by race. Institutionalized racism is normative, sometimes legalized and often manifests as inherited disadvantage. It is structural, having been absorbed into our institutions of custom, practice, and law, so there need not be an identifiable offender. Indeed, institutionalized racism is often evident as inaction in the face of need, manifesting itself both in material conditions and in access to power. With regard to the former, examples include differential access to quality education, sound housing, gainful employment, appropriate medical facilities, and a clean environment.[38]

As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with critical theory, critical legal studies, feminist jurisprudence, and postcolonial theory. However, some authors like Tommy J. Curry have pointed out that the epistemic convergences with such approaches are emphasized due to the idealist turn in critical race theory. The latter, as Curry explains, is interested in discourse (i.e., how we speak about race) and the theories of white Continental philosophers, over and against the structural and institutional accounts of white supremacy which were at the heart of the realist analysis of racism introduced in Derrick Bell's early works,[39] and articulated through such Black thinkers as W. E. B. Du Bois, Paul Robeson, and Judge Robert L. Carter.[40]

Critical race theory draws on the priorities and perspectives of both critical legal studies and conventional civil rights scholarship, while also sharply contesting both of these fields. CRT's theoretical elements are provided by a variety of sources. Angela P. Harris describes CRT as sharing "a commitment to a vision of liberation from racism through right reason" with the civil rights tradition.[41] It deconstructs some premises and arguments of legal theory and simultaneously holds that legally-constructed rights are incredibly important.[42] As described by Derrick Bell, critical race theory in Harris' view is committed to "radical critique of the law (which is normatively deconstructionist) and…radical emancipation by the law (which is normatively reconstructionist)."[43]

Critics including George Will saw resonances between CRT's use of storytelling and insistence that race poses challenges to objective judgments in the US, as exemplified by the acquittal of O. J. Simpson.[46][47] Some academics have criticized what they see as critical race theory's lack of supporting evidence, and the rejection of evidence as a standard of truths.[48]

Jeffrey J. Pyle wrote in the Boston College Law Review:[49]

Critical race theorists attack the very foundations of the [classical] liberal legal order, including equality theory, legal reasoning, Enlightenment rationalism and neutral principles of constitutional law. These liberal values, they allege, have no enduring basis in principle, but are mere social constructs calculated to legitimate white supremacy. The rule of law, according to critical race theorists, is a false promise of principled government, and they have lost patience with false promises.

Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals has called critical race theorists and postmodernists as the "lunatic core" of "radical legal egalitarianism."[50] He wrote:[50]

What is most arresting about critical race theory is that…it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories – fictional, science-fictional, quasi-fictional, autobiographical, anecdotal – designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.

Judge Alex Kozinski, who served on the Ninth Circuit Court of Appeals,[51] wrote that critical race theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable:[52]

The radical multiculturalists' views raise insuperable barriers to mutual understanding. Consider the "Space Traders" story. How does one have a meaningful dialogue with Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to the aliens. The story is also a poke in the eye of American Jews, particularly those who risked life and limb by actively participating in the civil rights protests of the 1960s. Bell clearly implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust – as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned – and rightly so.

Daniel Farber and Suzanna Sherry argued that the anti-meritocratic tenets in critical race theory, critical feminism, and critical legal studies may lead unintentionally to antisemitic and anti-Asian implications.[53][54][55] In particular, they suggested that the success of Jews and Asians within what CRT theorists argue is a structurally unfair system may lend itself to allegations of cheating, advantage-taking, or other such claims.[56]

They write:[57]

Consider the assertion [of critical race theory] that merit standards are affirmative action for the dominant group, a method of "keeping their own deficiencies neatly hidden while assuring only people like them get in." The intended reference was to "white people," but given the figures on law faculties, it is clear that at "elite" schools one might as well be in fact referring to Jews, which would give the statement a somewhat chilling overtone.

A series of responses was published in the Harvard Law Review shortly after Farber and Sherry's paper. These responses argued that there is a difference between criticizing an unfair system and criticizing individuals who perform well inside of that system.[56]

In 2010, the Mexican American Studies Department Programs in Tucson, Arizona were effectively banned due to their connection to CRT, which was seen to be in violation of a recently passed state law that "prohibits schools from offering courses that 'advocate ethnic solidarity instead of the treatment of pupils as individuals.'"[58] The ban included the confiscation of books, in some cases in front of students, by the Tucson Unified School District.[59] Matt de la Peña's young-adult novel Mexican WhiteBoy was banned for containing CRT.[60] However, this ban was later deemed unconstitutional on the grounds that the state showed discriminatory intent. "Both enactment and enforcement were motivated by racial animus," federal Judge A. Wallace Tashima said in the ruling.[61]

On 20 October 2020, the Conservative UK Equalities Minister Kemi Badenoch stated that, in regard to teaching Critical Race Theory in primary and secondary school, "we do not want to see teachers teaching their pupils about white privilege and inherited racial guilt.... [A]ny school which teaches these elements of critical race theory, or which promotes partisan political views such as defunding the police without offering a balanced treatment of opposing views, is breaking the law."[62] Badenoch's remarks have been countered in an open letter, signed by hundreds of academics nationwide, that highlights Badenoch's alleged misapprehensions about CRT.[63] On 30 October 2020, an open letter signed by 101 writers of the Black Writers' Guild[64] condemned Badenoch for saying that some authors want racial division, including her criticisms of books such as White Fragility and Why I'm No Longer Talking to White People About Race, saying that: "many of these books - and, in fact, some of the authors and proponents of critical race theory - actually want a segregated society."[65]

In September 2020, then-President Donald Trump issued an executive order directing agencies of the United States Government to cancel funding for racial sensitivity training for their workforce, including any programs that mention "white privilege" or "critical race theory", on the basis that it constituted "divisive, un-American propaganda".[66][67][2] On January 26, 2021, President Joe Biden issued an executive order rescinding and canceling Trump's previous executive order on sensitivity training and once again permitted agencies to use such programs.[68]

Another offshoot field is disability critical race studies (DisCrit), which combines Disability Studies and CRT to focus on the intersection of disability and race.[75]

Latino critical race theory (LatCRT) is a research framework that outlines the social construction of race as central to how people of colour (POC) are constrained and oppressed in society. Race scholars developed LatCRT as a critical response to the "problem of the color line" first explained by W. E. B. Du Bois.[76] While CRT focuses on the Black–White paradigm, LatCRT has moved to consider other racial groups, mainly Chicana/Chicanos, as well as Latinos/as, Asians, Native Americans/First Nations, and women of color.

In Critical Race Counterstories along the Chicana/Chicano Educational Pipeline, Tara J. Yosso discusses how the constraint of POC can be defined. Looking at the differences between Chicana/o students, the tenets that separate such individuals are:[77]

• the intercentricity of race and racism;
• the challenge of dominant ideology;
• the commitment to social justice;
• the centrality of experience knowledge; and
• the interdisciplinary perspective.

LatCRTs main focus is to advocate social justice for those living in marginalized communities[76] (specifically Chicana/os), who are guided by structural arrangements that disadvantage people of color. Social institutions function as dispossessions, disenfranchisement, and discrimination over minority groups, while LatCRT seeks to give voice to those who are victimized.[76] In order to do so, LatCRT has created two common themes:

First, CRT proposes that white supremacy and racial power are maintained over time, a process that the law plays a central role in. Different racial groups lack the voice to speak in this civil society, and, as such, CRT has introduced a new critical form of expressions, called the voice of color.[76] The voice of color is narratives and storytelling monologues used as devices for conveying personal racial experiences. These are also used to counter metanarratives that continue to maintain racial inequality. Therefore, the experiences of the oppressed are important aspects for developing a LatCRT analytical approach, and it has not been since the rise of slavery that an institution has so fundamentally shaped the life opportunities of those who bear the label of criminal.

Secondly, LatCRT work has investigated the possibility of transforming the relationship between law enforcement and racial power, as well as pursuing a project of achieving racial emancipation and anti-subordination more broadly.[4] Its body of research is distinct from general CRT in that it emphasizes immigration theory and policy, language rights, and accent- and national origin-based forms of discrimination.[78] CRT finds the experiential knowledge of people of color and draws explicitly from these lived experiences as data, presenting research findings through storytelling, chronicles, scenarios, narratives, and parables.[79]

AsianCrit looks at the influence of race and racism on the experiences and outcomes of Asian Americans in US education, providing a foundation for discourse around the racialized experiences of Asian Americans and other racially-marginalized groups in education.[80] Like LatCrit, AsianCrit is distinct from the main body of CRT in its emphasis on immigration theory and policy.[78]