Critical race theory
Critical race theory (CRT) is an interdisciplinary academic field focused on the relationships between social conceptions of race and ethnicity, social and political laws, and media. CRT also considers racism to be systemic in various laws and rules, and not based only on individuals' prejudices.[1][2] The word critical in the name is an academic reference to critical theory rather than criticizing or blaming individuals.[3][4]
This article is about the academic field. For other uses, see CRT (disambiguation).
CRT is also used in sociology to explain social, political, and legal structures and power distribution as through a "lens" focusing on the concept of race, and experiences of racism.[5][6] For example, the CRT conceptual framework examines racial bias in laws and legal institutions, such as highly disparate rates of incarceration among racial groups in the United States.[7] A key CRT concept is intersectionality—the way in which different forms of inequality and identity are affected by interconnections of race, class, gender, and disability.[8] Scholars of CRT view race as a social construct with no biological basis.[9][10] One tenet of CRT is that racism and disparate racial outcomes violating substantive equality are the result of complex, changing, and often subtle social and institutional dynamics, rather than explicit and intentional prejudices of individuals.[10][3][11] CRT scholars argue that the social and legal construction of race advances the interests of white people[9][12] at the expense of people of color,[13][14] and that the liberal notion of U.S. law as "neutral" plays a significant role in maintaining a racially unjust social order,[15] where formally color-blind laws continue to have racially discriminatory outcomes.[16]
CRT began in the United States in the post–civil rights era, as 1960s landmark civil rights laws were being eroded and schools were being re-segregated.[17][18] With racial inequalities persisting even after civil rights legislation and color-blind laws were enacted, CRT scholars in the 1970s and 1980s began reworking and expanding critical legal studies (CLS) theories on class, economic structure, and the law[19] to examine the role of US law in perpetuating racism.[20] CRT, a framework of analysis grounded in critical theory,[21] originated in the mid-1970s in the writings of several American legal scholars, including Derrick Bell, Alan Freeman, Kimberlé Crenshaw, Richard Delgado, Cheryl Harris, Charles R. Lawrence III, Mari Matsuda, and Patricia J. Williams.[22] CRT draws from the work of thinkers such as Antonio Gramsci, Sojourner Truth, Frederick Douglass, and W. E. B. Du Bois, as well as the Black Power, Chicano, and radical feminist movements from the 1960s and 1970s.[22]
Academic critics of CRT argue it is based on storytelling instead of evidence and reason, rejects truth and merit, and undervalues liberalism.[17][23] Since 2020, conservative US lawmakers have sought to ban or restrict the instruction of CRT education in primary and secondary schools,[3][24] as well as relevant training inside federal agencies.[25] Advocates of such bans argue that CRT is false, anti-American, villainizes white people, promotes radical leftism, and indoctrinates children.[17][26] Advocates of bans on CRT have been accused of misrepresenting its tenets, and of having the goal to broadly silence discussions of racism, equality, social justice, and the history of race.[27][28]
Tenets
Scholars of CRT say that race is not "biologically grounded and natural";[9][10] rather, it is a socially constructed category used to oppress and exploit people of color;[35] and that racism is not an aberration,[36] but a normalized feature of American society.[35]
According to CRT, negative stereotypes assigned to members of minority groups benefit white people[35] and increase racial oppression.[37]
Individuals can belong to a number of different identity groups.[35] The concept of intersectionality—one of CRT's main concepts—was introduced by legal scholar Kimberlé Crenshaw.[38]
Derrick Albert Bell Jr. (1930 – 2011), an American lawyer, professor, and civil rights activist, wrote that racial equality is "impossible and illusory" and that racism in the US is permanent.[36]
According to Bell, civil-rights legislation will not on its own bring about progress in race relations;[36] alleged improvements or advantages to people of color "tend to serve the interests of dominant white groups", in what Bell called "interest convergence".[35] These changes do not typically affect—and at times even reinforce—racial hierarchies.[35] This is representative of the shift in the 1970s, in Bell's re-assessment of his earlier desegregation work as a civil rights lawyer. He was responding to the Supreme Court's decisions that had resulted in the re-segregation of schools.[39]
The concept of standpoint theory became particularly relevant to CRT when it was expanded to include a black feminist standpoint by Patricia Hill Collins. First introduced by feminist sociologists in the 1980s, standpoint theory holds that people in marginalized groups, who share similar experiences, can bring a collective wisdom and a unique voice to discussions on decreasing oppression.[40] In this view, insights into racism can be uncovered by examining the nature of the US legal system through the perspective of the everyday lived experiences of people of color.[35]
According to Encyclopedia Britannica, tenets of CRT have spread beyond academia, and are used to deepen understanding of socio-economic issues such as "poverty, police brutality, and voting rights violations", that are affected by the ways in which race and racism are "understood and misunderstood" in the United States.[35]
Applications and adaptations
Scholars of critical race theory have focused, with some particularity, on the issues of hate crime and hate speech. In response to the opinion of the US Supreme Court in the hate speech case of R.A.V. v. City of St. Paul (1992), in which the Court struck down an anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence argued that the Court had paid insufficient attention to the history of racist speech and the actual injury produced by such speech.[91]
Critical race theorists have also argued in favor of affirmative action. They propose that so-called merit standards for hiring and educational admissions are not race-neutral and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.[92][93][94]
In his 2009 article "Will the Real CRT Please Stand Up: The Dangers of Philosophical Contributions to CRT", Curry distinguished between the original CRT key writings and what is being done in the name of CRT by a "growing number of white feminists".[95] The new CRT movement "favors narratives that inculcate the ideals of a post-racial humanity and racial amelioration between compassionate (Black and White) philosophical thinkers dedicated to solving America's race problem."[96] They are interested in discourse (i.e., how individuals 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,[97] and articulated through such African-American thinkers as W. E. B. Du Bois, Paul Robeson, and Judge Robert L. Carter.[98]
History
Early years
Although the terminology critical race theory began in its application to laws, the subject emerges from the broader frame of critical theory in how it analyzes power structures in society despite whatever laws may be in effect.[29] In the 1998 article, "Critical Race Theory: Past, Present, and Future", Delgado and Stefancic trace the origins of CRT to the early writings of Derrick Albert Bell Jr. including his 1976 Yale Law Journal article, "Serving Two Masters"[99] and his 1980 Harvard Law Review article entitled "Brown v. Board of Education and the Interest-Convergence Dilemma".[100][101]
In the 1970s, as a professor at Harvard Law School Bell began to critique, question and re-assess the civil rights cases he had litigated in the 1960s to desegregate schools following the passage of Brown v. Board of Education.[68] This re-assessment became the "cornerstone of critical race theory".[69] Delgado and Stefancic, who together wrote Critical Race Theory: a Introduction in 2001,[102] described Bell's "interest convergence" as a "means of understanding Western racial history".[103] The focus on desegregation after the 1954 Supreme Court decision in Brown—declaring school segregation unconstitutional—left "civil-rights lawyers compromised between their clients' interests and the law". The concern of many Black parents—for their children's access to better education—was being eclipsed by the interests of litigators who wanted a "breakthrough"[103] in their "pursuit of racial balance in schools".[104] In 1995, Cornel West said that Bell was "virtually the lone dissenter" writing in leading law reviews who challenged basic assumptions about how the law treated people of color.[29]
In his Harvard Law Review articles, Bell cites the 1964 Hudson v. Leake County School Board case which the NAACP Legal Defense and Educational Fund (NAACP LDF) won, mandating that the all-white school board comply with desegregation. At that time it was seen as a success. By the 1970s, White parents were removing their children from the desegregated schools and enrolling them in segregation academies.[105] Bell came to believe that he had been mistaken in 1964 when, as a young lawyer working for the LDF, he had convinced Winson Hudson, who was the head of the newly formed local NAACP chapter in Harmony, Mississippi, to fight the all-White Leake County School Board to desegregate schools.[106] She and the other Black parents had initially sought LDF assistance to fight the board's closure of their school—one of the historic Rosenwald Schools for Black children.[106][69] Bell explained to Hudson, that—following Brown—the LDF could not fight to keep a segregated Black school open; they would have to fight for desegregation.[107] In 1964, Bell and the NAACP had believed that resources for desegregated schools would be increased and Black children would access higher quality education, since White parents would insist on better quality schools; by the 1970s, Black children were again attending segregated schools and the quality of education had deteriorated.[107]
Bell began to work for the NAACP LDF shortly after the Montgomery bus boycott and the ensuing 1956 Supreme Court ruling following Browder v. Gayle that the Alabama and Montgomery bus segregation laws were unconstitutional.[108] From 1960 to 1966 Bell successfully litigated 300 civil rights cases in Mississippi. Bell was inspired by Thurgood Marshall, who had been one of the two leaders of a decades-long legal campaign starting in the 1930s, in which they filed hundreds of lawsuits to reverse the "separate but equal" doctrine announced by the Supreme Court's decision in Plessy v. Ferguson (1896). The Court ruled that racial segregation laws enacted by the states were not in violation of the United States Constitution as long as the facilities for each race were equal in quality.[109] The Plessy decision provided the legal mandate at the federal level to enforce Jim Crow laws that had been introduced by white Southern Democrats starting in the 1870s for racial segregation in all public facilities, including public schools. The Court's 1954 Brown decision—which held that the "separate but equal" doctrine is unconstitutional in the context of public schools and educational facilities—severely weakened Plessy.[110] The Supreme Court concept of constitutional colorblindness in regards to case evaluation began with Plessy. Before Plessy, the Court considered color as a determining factor in many landmark cases, which reinforced Jim Crow laws.[111] Bell's 1960s civil rights work built on Justice Marshall's groundwork begun in the 1930s. It was a time when the legal branch of the civil rights movement was launching thousands of civil rights cases. It was a period of idealism for the civil rights movement.[69]
At Harvard, Bell developed new courses that studied American law through a racial lens. He compiled his own course materials which were published in 1970 under the title Race, Racism, and American Law.[112] He became Harvard Law School's first Black tenured professor in 1971.[104]
During the 1970s, the courts were using legislation to enforce affirmative action programs and busing—where the courts mandated busing to achieve racial integration in school districts that rejected desegregation. In response, in the 1970s, neoconservative think tanks—hostile to these two issues in particular—developed a color-blind rhetoric to oppose them,[46] claiming they represented reverse discrimination. In 1978, Regents of the University of California v. Bakke, when Bakke won this landmark Supreme Court case by using the argument of reverse racism, Bell's skepticism that racism would end increased. Justice Lewis F. Powell Jr. held that the "guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." In a 1979 article, Bell asked if there were any groups of the White population that would be willing to suffer any disadvantage that might result from the implementation of a policy to rectify harms to Black people resulting from slavery, segregation, or discrimination.[113]
Bell resigned in 1980 because of what he viewed as the university's discriminatory practices,[28] became the dean at University of Oregon School of Law and later returned to Harvard as a visiting professor.
While he was absent from Harvard, his supporters organized protests against Harvard's lack of racial diversity in the curriculum, in the student body and in the faculty.[114][115] The university had rejected student requests, saying no sufficiently qualified black instructor existed.[116] Legal scholar Randall Kennedy writes that some students had "felt affronted" by Harvard's choice to employ an "archetypal white liberal... in a way that precludes the development of black leadership".[117]
One of these students was Kimberlé Crenshaw, who had chosen Harvard in order to study under Bell; she was introduced to his work at Cornell.[118] Crenshaw organized the student-led initiative to offer an alternative course on race and law in 1981—based on Bell's course and textbook—where students brought in visiting professors, such as Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado,[104] to teach chapter-by-chapter from Race, Racism, and American Law.[119][120][114][115]
Critical race theory emerged as an intellectual movement with the organization of this boycott; CRT scholars included graduate law students and professors.[22]
Alan Freeman was a founding member of the Critical Legal Studies (CLS) movement that hosted forums in the 1980s. CLS legal scholars challenged claims to the alleged value-neutral position of the law. They criticized the legal system's role in generating and legitimizing oppressive social structures which contributed to maintaining an unjust and oppressive class system.[22] Delgado and Stefancic cite the work of Alan Freeman in the 1970s as formative to critical race theory.[121] In his 1978 Minnesota Law Review article Freeman reinterpreted, through a critical legal studies perspective, how the Supreme Court oversaw civil rights legislation from 1953 to 1969 under the Warren Court. He criticized the narrow interpretation of the law which denied relief for victims of racial discrimination.[122] In his article, Freeman describes two perspectives on the concept of racial discrimination: that of victim or perpetrator. Racial discrimination to the victim includes both objective conditions and the "consciousness associated with those objective conditions". To the perpetrator, racial discrimination consists only of actions without consideration of the objective conditions experienced by the victims, such as the "lack of jobs, lack of money, lack of housing".[122] Only those individuals who could prove they were victims of discrimination were deserving of remedies.[47] By the late 1980s, Freeman, Bell, and other CRT scholars left the CLS movement claiming it was too narrowly focused on class and economic structures while neglecting the role of race and race relations in American law.[123]
Criticism
Academic criticism
According to the Encyclopaedia Britannica, aspects of CRT have been criticized by "legal scholars and jurists from across the political spectrum."[17] Criticism of CRT has focused on its emphasis on storytelling, its critique of the merit principle and of objective truth, and its thesis of the voice of color.[147] Critics say it contains a "postmodernist-inspired skepticism of objectivity and truth", and has a tendency to interpret "any racial inequity or imbalance [...] as proof of institutional racism and as grounds for directly imposing racially equitable outcomes in those realms", according to Britannica. Proponents of CRT have also been accused of treating even well-meaning criticism of CRT as evidence of latent racism.[17]
In a 1997 book, law professors Daniel A. Farber and Suzanna Sherry criticized CRT for basing its claims on personal narrative and for its lack of testable hypotheses and measurable data.[148]
CRT scholars including Crenshaw, Delgado, and Stefancic responded that such critiques represent dominant modes within social science which tend to exclude people of color.[149] Delgado and Stefancic wrote that "In these realms [social science and politics], truth is a social construct created to suit the purposes of the dominant group."[149]
Farber and Sherry have also argued that anti-meritocratic tenets in critical race theory, critical feminism, and critical legal studies may unintentionally lead to antisemitic and anti-Asian implications.[150][151]
They write that the success of Jews and Asians within what critical race theorists posit to be a structurally unfair system may lend itself to allegations of cheating and advantage-taking.[152]
In response, Delgado and Stefancic write that there is a difference between criticizing an unfair system and criticizing individuals who perform well inside that system.[153]
Public controversies
Critical race theory has stirred controversy in the United States for promoting the use of narrative in legal studies, advocating "legal instrumentalism" as opposed to ideal-driven uses of the law, and encouraging legal scholars to promote racial equity.[154]
Before 1993, the term "critical race theory" was not part of public discourse.[28] In the spring of that year, conservatives launched a campaign led by Clint Bolick[155] to portray Lani Guinier—then-President Bill Clinton's nominee for Assistant Attorney General for Civil Rights—as a radical because of her connection to CRT. Within months, Clinton had withdrawn the nomination,[156] describing the effort to stop Guinier's appointment as "a campaign of right-wing distortion and vilification".[157] This was part of a wider conservative strategy to shift the Supreme Court in their favor.[158][159][160][161]
Amy E. Ansell writes that the logic of legal instrumentalism reached wide public reception in the O. J. Simpson murder case when attorney Johnnie Cochran "enacted a sort of applied CRT", selecting an African-American jury and urging them to acquit Simpson in spite of the evidence against him—a form of jury nullification.[162] Legal scholar Jeffrey Rosen calls this the "most striking example" of CRT's influence on the US legal system.[163] Law professor Margaret M. Russell responded to Rosen's assertion in the Michigan Law Review, saying that Cochran's "dramatic" and "controversial" courtroom "style and strategic sense" in the Simpson case resulted from his decades of experience as an attorney; it was not significantly influenced by CRT writings.[164]
In 2010, a Mexican-American studies program in Tucson, Arizona, was halted because of a state law forbidding public schools from offering race-conscious education in the form of "advocat[ing] ethnic solidarity instead of the treatment of pupils as individuals".[165] Certain books, including a primer on CRT, were banned from the curriculum.[165] Matt de la Peña's young-adult novel Mexican WhiteBoy was banned for "containing 'critical race theory'" according to state officials.[166] The ban on ethnic-studies programs 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 ruled.[167]