Bradly Mason

[This article is a revised and expanded edition of “In Short, What is Critical Race Theory?”]

In 1989, when I was a boy of eleven years—born into an all-White church, attending an all-White elementary school in all-White town, well on my way to believing that racism was in the past, that America had achieved equality, and that inferiority of racial circumstance simply reflected inferiority of racial “culture”—more than twenty legal scholars met in Madison, WI to discuss how we ended up here and what should be done about it. This “Workshop” was titled “New Developments in CRT,” the first formal use of the now oft maligned acronym.[1]

1. Civil Rights Retrenchment: Why?

Just over twenty years following the passage of the 1964 Civil Rights Act, 1965 Voting Rights Acts, and the 1968 Fair Housing Act, the stated goals of this historic legislative package seemed further and further out of reach. Kimberlé Crenshaw, who spearheaded the first CRT Workshop along with Neil Gotanda and Stephanie Phillips, was sadly able to report in 1988 that,

Continuing disparities exist between African-Americans and whites in virtually every measurable category. In 1986, the African-American poverty rate stood at 31%, compared with 11% for whites. … “[B]lack median income is 57 percent that of whites, a decline of about four percentage points since the early 1970’s.” … Between 1981 and 1985, Black unemployment averaged 17%, compared to 7.3% for whites. … In 1986, approximately 44% of all Black children lived in poverty. … Blacks comprise sixty percent of the urban underclass in the United States. … The African-American socioeconomic position in American society has actually declined in the last two decades. Average annual family income for African-Americans dropped 9% from the 1970’s to the 1980’s. … Since 1969, the proportion of Black men between 25 and 55 earning less than $5000 a year rose from 8% to 20%.[2]

Further, the 1980s had begun with the ascendance of the “New Right” to national power and prominence. The “Reagan Revolution” was understood by many civil rights advocates to represent the near full re-emergence of the segregationist discourse—states’ rights, federalism, radically free enterprise, freedom of association, increased privatization, color-blind meritocracy, opposition to public assistance, etc., all couched in the polemics of anti-communism, with appeals to civil religion, but repackaged in “race-neutral” language. According to Crenshaw, “[t]he Reagan Administration arrived in Washington in 1981 with an agenda that was profoundly hostile to the civil rights policies of the previous two decades.”[3] Not only did the Reagan administration block new civil rights legislation, it also rolled back existing legislation and abandoned continued litigation in key civil rights cases inherited from the Carter administration.[4]

And Ronald Reagan made his judicial philosophy on civil rights abundantly clear when he nominated Robert Bork to the Supreme Court—the “Originalist” jurist and solicitor general under Gerald Ford who had famously defended the “right” for HUD to implement racially discriminatory housing policies. Even conservative justice William T. Coleman wrote during Bork’s confirmation battle that “when Congress has legislated to promote black equality Judge Bork has frequently argued that Congress’s efforts are unconstitutional or interfere with whites’ ‘liberty’ to discriminate.”[5] In the end, when Thurgood Marshall, America’s first African American Supreme Court Justice, was asked to “rate some of the Presidents and their impact on racial justice in his lifetime,” he placed Ronald Reagan at the bottom, “down with Hoover and that group. Wilson. When we really didn’t have a chance.”[6]

The civil rights philosophy of the majority of Americans was clear: the work was complete, discrimination was illegal, and equality had been achieved through Brown v Board of Education and the subsequent national Civil Rights Acts of the late 1960s. Thus, the legislature and courts had already done enough, maybe even too much. For the government to do any more would cause more harm, it was thought, than would the few remaining vestiges of racism, most of which would soon disappear anyhow. In fact, whatever racial inequality that remained in the 1980s should be understood simply as the natural fall-out of legally equal people-groups acting unequally in an open and equal society. Thus, the vast society-wide social and economic disparities seen throughout the nation were rationalized as legitimate, natural, and even just.

How, just twenty years following the passage of the Civil Rights Acts, had America come to such ideological and existential reversals?

2. CRT Forerunners: Derrick Bell and Alan Freeman

Professor Derrick Bell, mentor to many CRT scholars and the first tenured Black professor at Harvard Law, had already begun to diagnose the cause of this Civil Rights retrenchment in the 1970s. It was nothing new, according to Dr. Bell. “[E]ven a rather cursory look at American legal history,” he writes,

suggests that in the past, the most significant political advances for blacks resulted from policies which were intended and had the effect of serving the interests and convenience of whites rather than remedying racial injustices against blacks … .[7]

And, accordingly, when these White interests change, the fortunes of Black Americans are in turn reversed. For example, the Reconstruction Amendments following the Civil War were soon overwhelmed by the vast apparatus of Jim Crow laws, the KKK, and political disenfranchisement; the Brown v. Board of Education decision was quickly ameliorated by the “all deliberate speed” ruling of Brown II, putting off its substantive remedies indefinitely, while leaving the well-being of Black students and Black schools out of the equation altogether; and the achievements of the 1960’s Civil Rights Movement proved to quickly give way to mere formal, color-blind, remedy averse foot-dragging and legal indifference toward the actual circumstances of African Americans. This cycle—of which many more examples are available—is what Devon Carbado has called the “reform/retrenchment dialectic,”[8] and its diagnosis was termed “Interest Convergence” by Dr. Bell; “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”[9]

Further, in his 1976 “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation,” Dr. Bell called into question the tangible benefits of the civil rights establishment’s (CRE’s) push for formally desegregated schools as an end in itself. Alternatively, he argued, emphasis on the quality of education received by African American children should outweigh the goal of mere “racial balance,” and that, in practice, these goals were not synonymous, as CRE lawyers (including Bell himself), had assumed. Dr. Bell redirected his students’ attention away from the steady, inevitable progress narrative of traditionalists within the CRE to focus on improving the real-life circumstances of African Americans. According to some of his students, who would become the founders of CRT,

All that was necessary was a race-conscious perspective that focused on the effect of integration on the black community. That change in perspective is the intellectual starting point of Critical Race theory.[10]

Dr. Bell’s work signaled a return to the more “radical” elements of the abolitionist and civil rights tradition of, e.g., Marcus Garvey, W.E.B. Du Bois, Oliver C. Cox, Malcom X, Stokely Carmichael, and the unsanitized Dr. King[11], including a renewed emphasis on race-consciousness, racial power dynamics, economic explanations for racial domination, and an emphasis on substantive over symbolic equality. Dr. Bell’s central text, Race, Racism and American Law, went beyond what had become the traditional legal scholarship of the CRE.

Traditional scholarship on race was at this point firmly grounded in the liberal individual rights model. The objective was to get these second-class citizens some rights, but the efforts to secure these rights had to be reconciled with other important interests, such as federalism, the free market economy, institutional stability, vested expectations, and the like. Anticipating a conservative counter-critique, early scholarship around race sought to legitimize a certain amount of judicial “activism” in the face of concerns about judicial overreaching, social engineering, political agenda setting, and recommitting the interventionist errors of Lochner. (Crenshaw)[12]

That is, traditional legal race scholarship at this point was almost entirely occupied with how to interrupt the status quo on behalf of disenfranchised Americans without likewise interrupting the rest of the liberal program—i.e., individual freedom, freedom of association, free markets, vested interests, property rights, etc. In contrast,

Bell’s approach diverged from this conventional orientation in at least two important ways. First, for Bell, the question was not how to justify judicial interventions on behalf of the interests of racial equality against independent, preexisting interests. These interests themselves often functioned as repositories of racial subordination. Nor, in his view, should success in achieving constitutional protection be measured solely in terms of individual rights. The point was to understand how law contributed to the systemic disempowerment of African Americans more broadly. Moreover, Bell understood that the measure of civil rights law is its concrete effectiveness in helping to contest the actual conditions of racial domination.[13]

Therefore, Dr. Bell sought to interrogate law itself as a “repository of racism” and called for reforms that would target the subordinated circumstances of African Americans rather than just their subordinated legal status.

In some tension with Bell’s “instrumental” explanation for retrenchment—“within which doctrinal developments are seen to reflect fairly directly the relative balance of social interests,”[14] Critical Legal Studies (CLS) scholar Alan David Freeman tackled the problem of civil rights retrenchment through a broader critique of the nature and function of law. According to CLS scholars such as Dr. Freeman, the law—including the legal code, court holdings, and ongoing discourse—is not best understood as a stable and transcendent arbiter of Justice which only needs to be technically and accurately applied. It is, rather (1) “an evolving statement of acceptable public morality” that, (2) “serves largely to legitimize the existing social structure,” (3) is indeterminate, “for virtually every ‘rule’ there is a counter-rule, an exception, of some other lawyerly gambit available to the legal question at issue in equipoise,” and, therefore, (4) judicial decisions’ “ultimate constraints are outside the legal system,” viz., are cultural, sociological, psychological, institutional, moral, religious, etc.[15]

In other words, the law generally reflects the changing moral commitments of a society; it does not prescribe them. Law is not neutral but is itself ideology and politics, a contingent artifact of social history. It functions in society to preserve the reigning moral code, the current power structure, and the status quo by making such systems appear natural, neutral, necessary, and ultimately just. Even antidiscrimination law, according to CLS scholars, though sold as a site of reform, is more likely to legitimate racism and racist systems than it is to remedy them, since it is only a reflection of a society’s dominant morality, existing distributive systems, and power structures. That’s just how law functions in real life. And, therefore, there should be no surprise that much of what is presented as remedy only serves in the end as justification for the continuing subordinated circumstances of African Americans. Freeman writes:

[A]s the law has outlawed racial discrimination, it has affirmed that Black Americans can be without jobs, have their children in all black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law.[16]

And CLS scholars not only offered the critical ideas for analysis, they

provided a detailed inventory of the ideological practices by which the legal order actively seeks to persuade those who are subject to it that the law’s uneven distribution of social power is nonetheless “just.” … [I]n their account of legal consciousness, critical legal theorists demonstrated the precise mechanisms by which legal institutions and ideology obscure and thus legitimize their productive, constitutive social role.[17]

3. CRT: An Intervention Into CLS

Accordingly, the CLS movement was quite attractive to the many young legal scholars of color who would soon form a critical theory of race, “because,” as Mari Matsuda has written,

its central descriptive message—that legal ideals are manipulable, and that law serves to legitimate existing maldistributions of wealth and power—rings true for anyone who has experienced life as a nonwhite in America.[18]

In fact, Critical Race Theory might best be understood as a “spin-off” of CLS, having been distinguished and characterized as a movement by its oppositional relationship thereto. Dr. Crenshaw explains:

CRT came to life in the cracks between alignment and misalignment. Early Race Crits were situated in a dialectical loop, attracted to and repelled by certain elements of liberal civil rights discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS. … CRT emerged not only as a critical intervention in a particular institutional contestation over race but also as a race intervention in a critical space, namely CLS.[19]

Thus, a proper understanding of CLS, coupled with CRT’s major points of departure, are indispensable for telling the story of Critical Race Theory and, ultimately, understanding its commonplaces as more than just untethered intellectual abstractions.

4. Alignment of CLS and CRT: A Common Foe

First, in significant alignment with those attending the first CRT Workshop, CLS was rightly critical of the civil rights establishment’s (CRE’s) ideology of “liberal integrationism” (in Gary Peller’s words), especially as it was in the 1970s and 80s.

Liberals take social justice to mean the right of individuals to be treated neutrally and objectively when subject to collective power (through law or any other state act). The liberal conception of justice is one of transcending bias and prejudice in the name of rationality—one of neutral and “equal rights.” The regulative ideal is to achieve neutrality in order to guarantee individual liberty.[20]

Soon after the close of the Civil Rights Era, progressive White and middle-class Black Americans were able to successfully absorb the message of the Civil Rights Movement (CRM) into White Americans’ existing ideals of liberalism. Racism, according to this analysis, is just a specie of the general mythological, backward, and irrational emphasis on human difference as opposed to the more enlightened understanding of human sameness, with individuals as both the basic unit of analysis and as universally interchangeable in all normative social contexts, including law, politics, and economics.

The meaning of race has been grafted onto other central cultural images of progress, so that the transition from segregation to integration and from race consciousness to race neutrality mirrors movements from myth to enlightenment, from ignorance to knowledge, from superstition to reason, from the primitive to the civilized, from religion to secularism, and, most importantly, the historical self-understanding of liberal society as representing the movement from status to individual liberty. In other words, integrationist ideology comprehends the issue of racial domination by viewing race relations through stock images about the nature of progress in liberal society….[21]

As a result, rather than addressing the context-bound subordinated circumstances of Black Americans as a people-group, the CRE began to center their continuing civil rights work on the liberal integrationists’ individualist analytic of prejudice, discrimination, and segregation, thereby eschewing race-conscious remedies—those which would redistribute resources and power—in favor of “neutral standards,” like “color-blind merit.” Given time, the establishment argued, through ordinary legal challenges, appeals to antidiscrimination law and court precedent, knowledge would soon overcome prejudice, “neutral standards” would overcome discrimination, and integration would overcome segregation. But “allowing race to count for anything,” even for the sake of remediation, contradicted the CRE’s individualist/universalist liberal prescription. The terms of this coalition between White progressives and Black “elites” would prove to be the rejection of both “backward hillbillies” and “Black agitators” in exchange for liberal enlightenment.

[T]he price of the national commitment to suppress white supremacists would be the rejection of race consciousness among African Americans.”[22]

Once the ideology of liberal integrationism had been widely adopted, both Black nationalists and White supremacists could together be rejected as backward, prejudiced, unenlightened, anti-liberal enemies of racial progress in America—and, more realistically, enemies of the presumed “race-neutral” status quo. Rather than racial subordination or unequal distribution of power and resources, “color-consciousness” itself became the hallmark of racist violation, whether “perpetrated” by White or Black Americans.

For CLS, the ideology of liberal integrationism served only to legitimate the continued subordinated circumstances of African Americans. Having outlawed segregation and discrimination, reasoned many within the CRE, the standards and policies which replaced them (or somehow persisted unscathed through them) must therefore be considered neutral and objective, and therefore “not racist.” Under this regime of “neutrality”—in the words of Alan Freeman,

the actual conditions of racial powerlessness, poverty, and unemployment can be regarded as no more than conditions—not as racial discrimination. Those conditions can then be rationalized by treating them as historical accidents or products of a malevolent fate, or, even worse, by blaming the victims as inadequate to function in the good society.[23]

This CLS critique of the civil rights compromises of White liberalism proved invaluable to race scholars in the critical tradition, presenting an important point of ideological alignment between the two movements. Nevertheless, CRT scholars also found significant points of misalignment as well. Some further explanation of CLS is required in order to tease out these defining elements. Bear with me.

5. CLS: Offspring of Legal Realism

First, CLS is a direct descendent of Legal Realism, an historical attempt to treat the law and legal outcomes scientifically. Law, Legal Realist argued, was to be treated like any other social artifact, not as a transcendent inscription of right and wrong whose internal logic produced determinate answers for jurists willing to stick to the text and think rationally. Like any other social artifact, the law contained many practically produced contradictions, is subject to multiple interpretations, and should be treated and employed as an object of sociological inquiry rather than a system residing in Plato’s Heaven. These ideas are foundational to the CLS approach. According to one of the most popular CLS proponents, Mark Tushnet,

The legal realists taught us … [t]here were and always are rules and counterrules, rules with exceptions of such scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively on analogies to apparently unrelated areas of law, and so on. Statutes too have to be interpreted and fit into a whole legal universe, and cannot be understood as a series of words whose meaning is fixed at the time of enactment.[24]

6. CLS: A Rejection of “Vulgar” Marxism

Second, contrary to many popular-level opinion makers, CLS scholars openly rejected what many called “vulgar Marxism” (“scientific Marxism,” “traditional Marxism”)—that is, the Marxism of Marx himself—class essentialism, the “base”/“superstructure” paradigm, historical, material, and economic determinism, a strict labor theory of value, etc. Richard Michael Fischl voiced a common CLS sentiment in the 1980s:

Many of us do work in an intellectual tradition in which Marx plays an important role; indeed, his core insight that human belief systems are social constructs is the starting point for much modern social theory. But that hardly makes us Marxists. Indeed, to the extent that that reckless charge suggests that we favor totalitarianism and/or thought control, it describes a set of ideological commitments that are the polar opposite of those held by CLS.[25]

But most importantly for our purposes, they rejected Marx’s “instrumental” understanding of law. In Karl Marx’s own words:

My view is that each particular mode of production, and the relations of production corresponding to it at each given moment, in short ‘the economic structure of society’, is ‘the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness’, and that ‘the mode of production of material life conditions the general process of social, political and intellectual life.’[26]

Marx argues from history that the means of production—tools, materials, labor—determine the mode of production, i.e., the organization of labor and productive methods, like slavery, feudalism, capitalism, socialism, etc. Further, the “ideology” or “superstructure” of social existence is both born of and determined by this “base,” the mode of production. Thus, religion, philosophy, science, mathematics, and art all exist as necessary products of the mode and organization of production in one’s given place in history. And this, as Marx states above, includes law. The legal structure itself “arises” from “the real foundation,” the current mode of production, specifically, capitalism, including for Marx the dialectic of class warfare. To put it very crudely, the law is a mere “instrument” or tool of bourgeois interests.

One obvious objection of CLS scholars to this instrumental view was that the law is simply too indeterminate to function as an instrument or tool of any group’s interests, bourgeois or otherwise.

Most of us no more believe that economic power “determines” the law than we believe that legal reasoning determines it; indeed, a rejection of such vulgar Marxist determinism is a major contribution of CLS scholarship to progressive legal thought.[27]

Second, CLS charged Marxist instrumentalism with circularity. CLS scholar Mark Tushnet outlines this next objection well:

How can one simultaneously believe all of the following propositions to be true: (1) The base determines (in some strong or weak sense) the superstructure; (2) law is an element of the superstructure; (3) the base consists of the relations of production; and (4) relations of production are defined in terms of ownership of the means of production? Legal terms seem to constitute the base, but that is what supposedly determines them.[28]

In other words, the mode/relations of production, including class structure, cannot be constitutive of the law because the law is itself constitutive of the relations of production and class structure. Marxist instrumentalism is viciously circular.

But this second objection hinges on a third—an objection that gets right to the heart of what makes CLS what it is. Not only does CLS reject the idea that “law appears as merely an instrument of class interests that are rooted outside of law,” but CLS rejects the claim that law can be understood as an “ideological reflection” of any “concrete social reality” rooted outside of law.[29] According to CLS scholars, any possible “fact” of social reality is itself constructed by law and legal discourse, in conjunction with other socio-political factors, and therefore cannot serve as a “base” to any “superstructure.” That is, CLS not only rejected Marx’s instrumentalism, CLS rejected Marxism’s underlying essentialism, viz., the idea that any social entity or identity exists as a natural fact independent of law. The law, for CLS scholars, is in part constitutive of class, gender, race, etc., and therefore can never be understood as mere instrument.

Many critics sought to distinguish themselves from … “instrumentalist” accounts on the grounds that they embodied a constricted view of the range and sites of the production of social power, and hence of politics. By defining class in terms of one’s position in the material production process, and viewing law and all other “superstructural” phenomena as merely reflections of interests rooted in social class identification, vulgar Marxism, crits argued, ignored the ways that law and other merely “superstructural” arenas helped to constitute the very interests that law was supposed to merely reflect.[30]

For CLS, “the legal system is not simply or mainly a biased referee of social and political conflict whose origins and effects occur elsewhere”; rather, “the law is shown to be thoroughly involved in constructing the rules of the game, in selecting the eligible players, and in choosing the field on which the game must be played.”[31] Neither class, nor gender, nor race, etc., exist “out there,” “outside of or prior to law,” such that law and other “superstructural arenas” might be understood as mere instruments of these socio-politico identitarian interests.

7. CLS: A “Critical” Project

Accordingly, CLS scholars saw themselves as working within the “Critical Marxist” tradition of György Lukács, Karl Korsch, and the Frankfurt School, as opposed to the “Scientific Marxist” tradition of the Communists. And rightly so. Historically speaking, the enduring contribution of Karl Marx—that which places him among Weber and Durkheim as the fathers of sociology—was not his specific critique of capitalism, his communist eschatology, or his class dialectic anyhow, but rather his historical materialist critique of the whole; that is, his critical method. Rather than look to this or that injustice or social ill, Marx examined the whole social order from its material roots. As one sees poverty, war, subjugation, oppression, whatever, the cause and solutions are not ultimately to be found in ideology per se, nor even in the believed and stated motivations of social actors, but in the underlying system of relations operating at the brass-tacks level of human existence—the “ensemble of social relations.” Eating, one might say, precedes ideology. But unlike traditional Marxists, Critical Theorists rejected Marx’s specific linear, deterministic explanation of the ills of social life (viz., the means of production necessarily determine the mode of production which together necessarily produce the “ideology” or “superstructure” of social existence, all inexorably propelled along through history by an essentialist class dialectic).

Max Horkheimer, in his 1937 essay “Traditional and Critical Theory,” captures well this sense of the ongoing “critical” tradition, without the trappings of vulgar or scientific Marxism, coining the phrase “Critical Theory” in the process:

[T]here is a human activity which has society itself for its object. The aim of this activity is not simply to eliminate one or other abuse, for it regards such abuses as necessarily connected with the way in which the social structure is organized. Although it itself emerges from the social structure, its purpose is not, either in its conscious intention or in its objective significance, the better functioning of any ele­ment in the structure. On the contrary, it is suspicious of the very categories of better, useful, appropriate, productive, and valuable, as these are understood in the present order, and re­fuses to take them as nonscientific presuppositions about which one can do nothing. … [T]he critical attitude of which we are speaking is wholly distrustful of the rules of conduct with which society as presently constituted provides each of its members. The separation between individ­ual and society in virtue of which the individual accepts as natural the limits prescribed for his activity is relativized in critical theory. The latter considers the overall framework which is conditioned by the blind interaction of individual activities (that is, the existent division of labor and the class distinctions) to be a function which originates in human action and therefore is a possible object of planful decision and rational determina­tion of goals.[32]

I would argue that for any theory or system of ideas to be considered properly “critical,” it must at least see (1) group-wide inequalities, hierarchical social stratification, and social ills generally as not simply the product of individual policies and individual actors, but deeply ingrained in the socio-historical development of institutions, norms, values, cultural expressions, and relations of power which operate thereby, (2) that these “pathologies” develop through historical processes of social creation and change, and that much of the furniture of social life and knowledge are therefore constructed and conditioned imminently, (3) that remedies require critique of the whole, and that the transformative action required to dismantle the systems and ideas which embody social dominance and pathology is inseparable from knowledge production itself, and, finally, (4) the theory or system of ideas ought to display a “radical reflexivity,” i.e., “reflective accountability concerning critical theory’s own practices.”[33] It is this sense of “critical” of which CRT scholar Angela Harris wrote in 1994:

CRT inherits from CLS a commitment to being “critical,” which in this sense means also to be “radical”—to locate problems not at the surface of doctrine but in the deep structure of American law and culture.[34]

8. CLS: Antonio Gramsci and Hegemony

Next, CLS was greatly influenced by Italian Neo-Marxist Antonio Gramsci. Gramsci, argued CLS scholars, accurately diagnosed and addressed another problem with Marx’s view of law. According to Dr. Crenshaw,

Traditional Marxist accounts present law as a tool of oppression serving to pacify the working class. … The Critics argue that this instrumental view is inadequate because it fails to account for the considerable support that the state and the legal system enjoy from the dominated classes.[35]

That is, in addition to the objections discussed above, it is difficult to characterize law as a mere instrument of the ruling class when there is visible buy-in from nearly all social and economic classes. Gramsci himself struggled to see how Marx’s view of law could explain the capitalist exploitation he’d experienced in late 1920s Italy. Even those laboring in the worst conditions, earning a starving wage, appeared to accept the system as just, natural, and appropriate, even willing to risk their own lives for its maintenance. From this awareness, Gramsci developed his concept of “hegemony,” “which is the social, cultural, or economic influence exerted by a dominant group over other groups.”

This influence stems from the perception of legitimacy afforded the dominant group by the subordinate groups. Hegemony is an active process whereby legitimacy is sought and maintained by the dominant group through the balancing of consent (that is, tacit support for the dominant group) and coercion (that is, the threat or use of forms of force).[36]

It became clear to Gramsci that the ruling class did not maintain control over their subordinates primarily through force, but through ideas, norms, and customs supposing and reinforcing the legitimacy of the current social order. This legitimating system permeated school, church, family, politics, art, economic life, etc.—Marx’s “ensemble of social relations” writ large—thereby eliciting “common sense” support for the dominant group. In short, the ordinary artifacts of social life proved also to be repositories of social power and means of social control. And the law is among these artifacts. The dominated, thereby, willingly granted consent even to social orders which manifestly worked against their own interests. As Critical legal historian Robert Gordon puts it,

the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are.[37]

Law, according to CLS scholars, should be seen as integral to hegemony, as constitutive rather than reflective of external class interests, and therefore as an integral aspect of legitimating the status quo—not by physical coercion, but by the general consent of both dominant and subaltern groups, making it difficult for either to “even to imagine that life could be different and better.”

9. CLS: Postmodernism/Poststructuralism

Another prominent aspect of CLS scholarship is its reliance on the text critical work of poststructuralists and/or postmodernists (PS/M) like Jean-François Lyotard, Jean Baudrillard, Michel Foucault, Jacques Derrida, Gilles Deleuze, etc. CLS scholar Gary Peller summarizes PS/M (at least as used by Critical Legal scholars) well in his 1987 article, “Reason and the Mob: The Politics of Representation.” First, according to Peller, PS/M theorists

share the commitment that there is no possibility of a neutral or objective interpretative practice or of merely representing (as opposed to interpreting) the world. When we attempt simply to represent, free from bias or distortion, we must always do so through language, broadly conceived as a socially created way to categorize perception of and communication about the world.

But language necessarily mediates perception and communication by shaping ways of thinking about the world that are themselves not necessary and natural, but social and contingent.[38]

That is, language itself is a socio-historical artifact, a product of culture and politics, and therefore cannot serve as neutral ground to determine “truth from ideology, fact from opinion, or representation from opinion.” As we attempt to peel away the “representations” to get to the neutral ground of the “represented,” we find only more language.

Second, PS/M suggests that “argument” and “rhetoric” are at bottom socio-political maneuvers of power. There is simply no “deeper logic,” “no grand organizing theory or principle with which to justify our social choices as neutral and apolitical, as the products of reason and truth rather than of passion or ideology.”[39] Therefore, PS/Ms

suggest that what has been presented in our social-political and our intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as truth itself.

In fact,

the deconstructionist wants to challenge reason on its own ground and demonstrate that what gets called reason and knowledge is simply a particular way of organizing perception and communication, a way of organizing and categorizing experience that is social and contingent but whose socially constructed nature and contingency have been suppressed.[40]

From this PS/M perspective, CLS scholars sought to expose the lack of “inner logic” and presumed necessity of the law, to “unmask” the political ideology contained within legal discourse, and demonstrate the law’s ultimate indeterminacy—a legal critique eloquently entitled “trashing.” This, of course, proved useful to race scholars seeking to understand how even antidiscrimination law itself could aid in civil rights retrenchment.

10. Alignment and Misalignment: Points of Departure

We have, to be sure, spent much of this article so far walking through the ideas of CLS. This, I assure you, is not without warrant. These ideas tell us much about Critical Race Theory, as it was, according to Dr. Crenshaw, an “intervention” into Critical Legal Studies.

In the mid 1980s, CLS was the place to be for progressive, left wing, and other nonconformist law folks. … For a range of left-leaning people of color in the legal academy looking for an ideological home, CLS was attractive. … Most importantly, CLS’s critique of law’s neutrality seemed to make perfect sense for any serious student of race in American society.[41]

So, how about the misalignment?

The most common departures noted by CRT scholars were (1) the general Whiteness of CLS, both as a publishing circle and a culture of inclusion/exclusion, (2) CLS’s claim that CRT has essentialized “race” and is thereby guilty of “racialism,” (3) CLS’s overemphasis on “consent” and “false consciousness,” (4) CLS’s rejection of “rights” discourse, (5) the tension between modernism and PS/M at the heart of Critical Race Theory, and, finally, (6) CLS’s lack of a reconstructive program. (But as this post is already quite long, we won’t be able to cover each of these in detail.[42]) It was these departures which distinguished CRT as an identifiable movement—a movement born in the tension between CLS and the traditional civil rights discourse.

11. CLS Charges Race Crits with “Racialism”

To begin with, in the early stages of CRT’s development, “race-crits” began to question the very White, wealthy, male perspectives of the Conference on Critical Legal Studies, suggesting that race and racism needed to be included in fundamental discussions of legal theory. In response, some CLS scholars accused these emerging race-crits of both “race essentialism”—the idea that “race” exists as a natural fact apart from law, and “racialism”—the idea that complex legal and social phenomena can be explained as mere reflections of the “fact” of race.

[S]ome CLS adherents were resistant to interrogating not only the fact that, as a formation, CLS was primarily white and male but also the extent to which that demographic representation was itself a sign of the pervasive nature of racial power. This dispute over race was particularly pronounced in a CLS conference held in 1987, the “Sounds of Silence” conference, in which scholars of color sought to center race as a set of questions within CLS and highlight the relationship between race and the rule of law as a crucial site of intellectual intervention. The convening produced both further debate and several articles by the emerging race crits about both the salience of race in law and social policy and its erasure in liberal legal ideology. The reaction of some CLS critics reflected their initial “framing of early CRT work as racialist.” This framing at least implicitly suggested that CRT was essentialist in that CRT scholarship reduced “complex phenomena” into a “simple reflection of some underlying ‘facts.’”[43]

Thus, some CLS scholars leveled the very same attack against the emerging critical theory of race that they had wielded against Marxist instrumentalism.

To critics of racialism, prevailing theorizations of race and law seemed to represent law as an instrumental reflection of racial interests in much the same way that vulgar Marxists saw the legal arena as reflecting class interests.[44]

“White interests,” according to CLS critics, simply took the place of “class interests” in Marx’s instrumentalist, essentialist, system.

As CRT scholars worked to disabuse their fellow critical scholars of this misunderstanding, they were forced to become very clear on their understanding of the nexus of race, racism, and law. In fact, this dispute was formative for CRT; “the critique of racialism did help clarify what was ‘critical’ about our race project.”[45] Their principal response was to argue that they had not, in fact, presumed “race” to be a natural fact, separate from the constitutive nature of law, such that race could thereby be used as an independent means to explain legal phenomena. Crenshaw, et al. explained:

[W]e began to think of our project as uncovering how law was a constitutive element in race itself: in other words, how law constructed race. Racial power, in our view, was not simply—or even primarily—a product of biased decision-making on the part of judges, but instead, the sum total of the pervasive ways in which law shapes and is shaped by “race relations” across the social plane. Laws produced racial power not simply through narrowing the scope of, say, of antidiscrimination remedies, nor through racially biased decision-making, but instead, through myriad legal rules, many of them having nothing to do with rules against discrimination, that continued to reproduce structures and practices of racial domination. In short, we accepted the crit [CLS] emphasis on how law produces and is the product of social power and we cross-cut this theme with an effort to understand this dynamic in the context of race and racism.[46]

Thus, CRT scholars leveraged CLS’s anti-essentialist critique in order to understand race and racism; they did not essentialize “race” and “racism” to serve as “base” to a Marxist “superstructure.” In fact, central to CRT is the premise that race is legally and socially constructed. CRT scholar Devon Carbado and explains well:

CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race: Law has historically employed race as a basis for group differentiation, entrenching the idea that there are “in fact” different races; law has helped to determine the racial categories (e.g., Black, White, Yellow) into which institutions and individuals place people; law sets forth criteria or rules (e.g., phenotype and ancestry) by which we map people into those racial categories; law has assigned social meaning to the categories (e.g., Whites are superior; Blacks are inferiors; Japanese Americans are disloyal); law has employed those meanings to structure hierarchical arrangements (e.g., legalized slavery for inferior people (Blacks) and legalized internment for people who are disloyal (people of Japanese descent)); and those legal arrangements, in turn, have functioned to confirm the social meanings that law helped to create (e.g., the people who are enslaved must be inferior; that is why they are enslaved; the people who are interned must be disloyal; that is why they are interned).[47]

In sum, along with CLS, Critical Race Theory began as a fundamental rejection of vulgar Marxism. CRT likewise rejected essentialism (or at least “aspired” to, according to Devon Carbado[48]; there is another whole discussion to be had around “Vulgar Anti-essentialism”). Central to CRT is the assertion that race is legally and socially constructed, not an independent “out there” natural entity capable of serving as “base” to a social and legal “superstructure.”

Soon after, following Kimberlé Crenshaw’s groundbreaking “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” early race-crits also leveraged the concept of Intersectionality against the charge of essentialism—at least as the charge was presented by CLS. According to Patricia Hill Collins,

intersectionality references the critical insight that race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but rather as reciprocally constructing phenomena.[85]

The fact that, for example, neither race, gender, nor class can alone determine anyone’s social location implies that either every possible group identity combined in every possible way serves as the independent “base” for law and society, or—and with equal legal and sociological value—none at all. According to intersectionality, race alone cannot serve Marx’s essentialist, instrumental function, for race is inescapably gendered and classed; gender likewise cannot serve this function, for gender is inescapably raced and classed; etc. None of these possible social identities, according to race-crits, nor any combination of them, exist “out there” as “facts” independently capable of explaining complex legal and social phenomena. None are capable of serving as “base” to Marx’s “superstructure.” They are, as Collins suggests, “reciprocally constructing phenomena.”

12. Overemphasis on “Consent” as Opposed to “Coercion”

As discussed above, Critical Legal Studies also relied heavily on Gramsci’s theory of hegemony to explain how the law masks and legitimates social subordination, making it appear natural, inevitable, just, and even advantageous to those exploited.

According to CRT scholar Robert Williams, CLS inherited this emphasis from “European critical social theory” which “has concerned itself with questions of hierarchy, hegemony, contradiction, and false consciousness since its proto-origins in the works of Marx and Nietzsche.”[49] Consistent with this European trajectory of critical social theory, CLS primarily emphasized the “consent” aspect of hegemony, thus arguing that false consciousness was the means by which exploited groups willingly participated in social orders which manifestly worked against their own interests. As such, it was ideology, ideas, and beliefs in the minds of the subjugated which primarily facilitated and maintained their subjugation.

But this emphasis on consent and false consciousness—while downplaying, even dismissing, more traditionally understood forms of domination—proved to be a major point of departure between the developing critical theory of race and the CLS movement from which it emerged. “Coercion,” argued Dr. Crenshaw in her 1988 “Race, Reform, and Retrenchment,”—the other side of Gramsci’s concept of hegemony—is a much more accurate description of the domination suffered by African Americans over the last 400 years. She takes critical historian Robert Gordon as an exemplar of CLS’s lopsided use of Gramsci, arguing that “Gordon’s explanation of ideological domination illustrates how an exclusive focus on consent leaves gaping holes in his reader’s understanding of hegemony.”

Gordon writes that beliefs are “the main constraints upon making social life more bearable.” Yet how can others understand the fact that Black people, although unable to bring about a world in which they fully participate, can imagine such a world? Clearly, something other than their own structure of thought prevents Blacks from changing their world. This fact suggests that a more complete explanation of domination requires that coercion and consent be considered together.

The coercive power of the state operates to suppress some groups, particularly when there is consensus among others that such coercion is warranted. Racism serves to single out Blacks as one of these groups “worthy” of suppression. Gordon, however, does not offer any way to understand this. If his exclusive focus on ideological domination is to be taken literally, one is left believing that Black Americans are unable to change their world because they accept the dominant ideology and thus cannot imagine an alternative existence. Yet to say that the beliefs of Black Americans have boxed them into a subordinate existence because of what they believe is to ignore the history of coercive racial subordination. Indeed, it would be difficult for Blacks, given the contradiction between American fiction and Black American reality, to believe as much of the American mythology as whites do.

The most significant aspect of Black oppression seems to be what is believed about Black Americans, not what Black Americans believe. Black people are boxed in largely because there is a consensus among many whites that the oppression of Blacks is legitimate. This is where consensus and coercion can be understood together: ideology convinces one group that the coercive domination of another is legitimate.[50]

In other words, Black Americans were not primarily subordinated by thoughts in their own heads, but by 400 years of legal and de facto marginalization. In fact, in the passage above, Dr. Crenshaw turns CLS scholars’ overemphasis on “consent” and “false consciousness” completely on its head. For Crenshaw, not only was it false that “the main constraints upon making life more bearable” for Black Americans’ was their own beliefs, but, alternatively, the oppressor was more likely to be the party under the spell of ideological false consciousness, believing that continued subordination of African Americans was “legitimate,” even in his own interest.

13. CLS’s Critique of “Rights” Discourse

Further, the divide between early race-crits and the Eurocentric critical tradition of CLS came into clearest view in their very public dispute over the traditional discourse of “rights” and “entitlements.” According to Robert Williams,

CLS raises the possibility that the “rights” “won” under cases such as Brown v. Board of Education or Goldberg v. Kelly are only chimeras, partial makeshift concessions whose principal function is to preserve the intellectual as well as social stability of the dominant order.[51]

That is, “rights” themselves are a means of social control according to CLS, a means of eliciting willing consent from the exploited by offering legal words of enfranchisement without the corresponding substance. CLS scholar Mark Tushnet explains how this occurs:

(1) Once one identifies what counts as a right in a specific setting, it invariably turns out that the right is unstable; significant but relatively small changes in the social setting can make it difficult to sustain the claim that a right remains implicated. (2) The claim that a right is implicated in some settings produces no determinate consequences. (3) The concept of rights falsely converts into an empty abstraction (reifies) real experiences that we ought to value for their own sake. (4) The use of rights in contemporary discourse impedes advances by progressive social forces ….[52]

By these means, “rights” discourse itself proves to preserve the status quo, becoming a tool for eliciting hegemonic consent, the very opposite of liberation.

CRT scholars, on the other hand, came to rights discourse with a very different perspective. Again, Dr. Williams:

The attack by the Critical Legal Studies movement on rights and entitlement theory discourse can be seen as a counter crusade to the hard campaigns and long marches of minority peoples in this country. Minority people committed themselves to these struggles, not to attain some hegemonically functioning reification leading to false consciousness, but a seat in the front of the bus, repatriation of treaty-guaranteed sacred lands, or a union card to carry into the grape vineyards.[53]

Throughout American history, people of color have suffered and died for the cause of rights, “combatants for a terrain that people of color are now told may have been nothing more than the chimerical construct of a mystified consciousness.”[54] It is these very real historical circumstances of very real marginalized people-groups that transforms “rights discourse” from the false consciousness inducing “rights” of the European critical tradition of CLS to the liberating “rights” of the abolitionist and civil rights tradition of the developing Critical Race Theory.

The reason why leftist and neo-leftist law professors feel little remorse or fear over the abandonment of rights discourse is that for them “rights” represent a concept, rather than a phenomenon. It is easy to “trash” a concept. One cannot experience the pervasive, devastating reality of a “right,” however, except in its absence. One must first be denied that seat on the bus, one must see the desecration of one’s tribe’s sacred lands, one must be without sanitary facilities in a farm field, to understand that a “right” can be more than a concept. A right can also be a real, tangible experience.[55]

Accordingly, Dr. Williams diagnoses the ideological source of these distinct views:

CLS’s attack reflects Eurocentric readings of peoples of color’s use of rights rhetoric. A discursive practice of abandonment dismissing minority peoples as irrelevant because of their anachronistic clinging to a false consciousness on rights can easily result from the acts of privileging and delegitimation which ground such Eurocentred readings. CLS’s attacks on rights discourse demonstrate the perils of a disengaged theoretical stance toward discourse unmediated by historical appreciation of the tradition from which a discursive practice is projected.[56]

That is, CLS saw the topic of “rights” and “entitlements” through what Harlon L. Dalton called the “clouded prism.” CLS scholars read and interpreted the issues of rights and entitlements, even hegemony and false consciousness, with a “disengaged theoretical stance” lacking an “appreciation of the tradition” from which the ideas they sought to critique were born. In other words, unlike the scholars of color who would form CRT, CLS scholars viewed “rights” discourse through the perspective of White, male, economically privileged—categories never really in need of “rights” in America to begin with. CRT scholars, on the other hand, saw rights as those for which their fathers marched and bled and sometimes died in order to secure even basic social accommodations.

Of course, this is not to argue that CRT scholars were (or are) in love with “rights” discourse either; they too see the potential legitimating dangers of formal verbiage without substantive action. Nevertheless, CRT scholar Patricia Williams brilliantly summarized the common early CRT sentiment on “rights” in this oft quoted passage:

To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them. And this was not the dry process of reification, from which life is drained and reality fades as the cement of conceptual determinism hardens round — but its opposite. This was the resurrection of life from ashes four hundred years old. The making of something out of nothing took immense alchemical fire — the fusion of a whole nation and the kindling of several generations.[57]

14. Modernism vs. Postmodernism: A Defining CRT Tension

Last, we come to an enduring tension that early set Critical Race Theory apart from its counterparts in CLS and has helped define CRT as a specific antiracist movement. CRT scholar Angela Harris wrote the following in her immensely informative 1994 article, “The Jurisprudence of Reconstruction”:

Even while it exposes racism within seemingly neutral concepts and institutions, however, CRT has not abandoned the fundamental political goal of traditional civil rights scholarship: the liberation of people of color from racial subordination. Although, like [CSL scholars], race-crits [CRT scholars] have questioned concepts of neutrality and objectivity, they have done so from a perspective that places racial oppression at the center of analysis and privileges the racial subject.

This commitment to antiracism over critique as an end in itself has created rifts between CRT and CLS.[58]

From the beginning, Critical Race Theorists have consistently noted the tension between their own set of ideas and the post-structuralism/modernism (PS/M) of Critical Legal Studies. She writes,

a comparison of CRT work with … CLS work … indicates a … serious tension. In its commitment to the liberation of people of color, CRT work demonstrates a deep commitment to concepts of reason and truth, transcendental subjects, and “really-out-there” objects. Thus, in its optimistic moments, CRT engages in “modernist” narratives.

She goes on to explain her meaning of “modernism” as opposed to the “postmodernism” discussed above:

Modernist narratives assume three things: a subject, free to choose, who can be emancipated or not; an objective world of things out there (a world “the way it really is” as opposed to the way things appear to be in a condition of false consciousness); and “reason,” the bridge between the subject and the object that enables subjects to move from their own blindness to “enlightenment.”[59]

She continues:

CRT inherits from traditional civil rights scholarship a commitment to a vision of liberation from racism through right reason. Despite the difficulty of separating legal reasoning and institutions from their racist roots, CRT’s ultimate vision is redemptive, not deconstructive. Justice remains possible, and it is the property of whites and nonwhites alike. In its “modernist narratives,” CRT seems confident that crafting the correct theory of race and racism can help lead to enlightenment, empowerment, and finally to emancipation: that, indeed, the truth shall set you free.[60]

CRT’s commitment to the liberation of people of color … suggest[s] a faith in certain concepts and institutions that postmodernists lack. When race-crits tell modernist stories, they assume that “people of color” describes a coherent category with at least some shared values and interests. They assume that the idea of “liberation” is meaningful-that racism is something that can one day somehow cease to exist, or cease to exert any power over us. Modernist narratives assume a “real” reality out there, and that reason can bring us face to face with it. And modernist narratives have faith that once enough people see the truth, right action will follow: that enlightenment leads to empowerment, and that empowerment leads to emancipation.[61]

Political modernism, more generally, has been a powerful force in the lives of subjugated peoples; as a practical matter, politically liberal societies are vastly preferable to the alternatives. A faith in reason has sustained efforts to educate people into critical thinking and to engage in debate rather than violence. The passionate and constructive energy of modernist narratives of emancipation is also grounded in a moral faith: that human beings are created equal and endowed with certain inalienable rights; that oppression is wrong and resistance to oppression right; that opposing subjugation in the name of liberty, equality, and true community is the obligation of every rational person. In its modernist moments, CRT aims not to topple the Enlightenment, but to make its promises real.[62]

Even CRT godfather Derrick Bell concurred:

[C]ritical race theory scholarship is … often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures. This is not to say that critical race theory adherents automatically or uniformly “trash” liberal ideology and method. Rather, they are highly suspicious of the liberal agenda, distrust its method, and want to retain what they see as a valuable strain of egalitarianism which may exist despite, and not because of, liberalism.

As this description suggests, critical race theory scholarship exhibits a good deal of tension between its commitment to radical critique of the law (which is normatively deconstructionist) and its commitment to radical emancipation by the law (which is normatively reconstructionist). Angela Harris views this tension—between “modernist” and “postmodernist” narrative—as a source of strength because of critical race theorists’ ability to use it in ways that are creative rather than paralyzing.[63]

And nearly 30 years after Harris’s article, Devon Carbado and Cheryl Harris explain much the same, noting the same tension that has continued from CRT’s beginnings:

CRT’s early repudiation of a certain kind of anti-essentialist critique [provided by PS/M] cleared the ground for the articulation of a range of important ideas, among them these: There is something irreducible that we might call race (though the meaning of race shifts over time and place, is historically contingent, and intersects with and is shaped by other axes of social differentiation). There are people we might call “Black” (though the content and experiences of blackness are not static but a function of particular social, legal, cultural, and ideological processes). There is a social force we might call “racism” (though its content and effects, and the technologies through which it is expressed, are neither transhistorical nor predetermined). And there is a phenomenon that we might call whiteness (though its boundaries are never fixed or fully articulated but are constituted and reconstituted in the service of racial power).[64]

Thus, while CLS offered deconstructive prowess, helping to expose the indeterminacy of law, the oppressive ideologies contained within, and helping to explain the inevitable cycle of reform and retrenchment discussed at the opening, the founding generation of Critical Race Theorists demanded more. They demanded a reconstruction as well, a project of liberation that would go beyond mere ideological “trashing.” And while CLS rejected the concept of rights—even civil rights—as “undermin[ing] efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse” (Mark Tushnet[65]), CRT understood “the concept of rights, both positive and negative, [as] the marker of our citizenship, our participatoriness, our relation to others” (Patricia Williams[66]). And while CLS accused CRT of “racialism,” just as they had accused Marxism of “classism,” CRT advocated for real life change in the real-life circumstances of real, though socially constructed, racialized and oppressed people-groups.

Race-crits have rejected the project of “total critique” and are committed to transforming modernist paradigms as well as criticizing them. (Angela Harris)[67]

In short, the “race intervention in a critical space” that is Critical Race Theory was deeply and inescapably informed by the tension between the (literal) life and death commitment to traditional Civil Rights ideology and the postmodern critique inherited from Critical Legal Studies.

15. The Harvard Law Affair

But not only was CRT a “race intervention in a critical space,” according to Dr. Crenshaw, it was a “critical intervention in a particular institutional contestation over race,” specifically within the academy.[68]

The eruption that served as a point of departure in CRT’s trajectory was the institutional struggle over race, pedagogy, and affirmative action at America’s elite law schools.[69]

Many CRT scholars, Dr. Crenshaw predominately, point to the student protests at Harvard Law beginning in 1981 as that which materially set the stage for the first Workshop on Critical Race Theory mentioned at the opening.[70] Following the departure of Harvard Law School’s (HLS’s) then only tenured Black professor in 1982, Derrick Bell, “[t]he School suffered a 100% reduction in its tenured minority faculty” (p. 1265) and his semester long course “had simply been dropped from the curriculum.”[71] Students organized and confronted the Dean of the School at the time, Dr. James Vorenberg, demanding greater minority representation among the Law School’s faculty and the continuation of Bell’s course. “[N]early five hundred students signed a petition urging HLS to reinstate ‘Constitutional Law and Minority Issues’ and to hire tenure track professors to teach this and other courses addressing minority issues.”[72] The Dean responded in a meeting with student representatives by questioning both the need for minority faculty and the need for Bell’s specific course:

He began his curricular inquiry with ‘what is “so special” about a course on “Constitutional Law and Minority Issues” that could not be learned through the basic course in constitutional law in combination with perhaps a placement in legal services. On the question of recruitment, the Dean parried with a reference to a white civil rights attorney and queried, “[W]ouldn’t you prefer an excellent white professor over a mediocre Black one?”[73]

He further argued that the “pool” of “qualified” minority professors was just too small to fill the void at HLS. He, in fact, hired ten more White professors that very year, ignoring a list of thirty Black professors suggested by the Black Law Student Association. The response from the students was no Ivy League letter writing campaign.

[A]ll hell broke loose at Harvard Law School. Within the next two years, Harvard would become the scene of acrimony unlike any time since the student takeovers during he Vietnam War. The long, carpeted halls with conspicuous “Quiet” signs would be taken over by chanting students, the sacred faculty library would be invaded by a sea of “Desegregate Now!” t-shirts, and even the Dean’s inner sanctum would suffer the indignities of students standing on his desk.[74]

In response, the Dean organized a “three week mini-course” to be taught by two accomplished White civil rights lawyers covering traditional civil rights litigation and remediation. This was taken as a final insult by the students of color at HLS. First, it was only three weeks long rather than the full semester that was Bell’s course. Second, it was a fundamentally different approach to “minority issues” than that provided by Bell’s course;

while we knew remediation was important, we wanted to ground our studies in a thorough understanding of how law constituted the problem of race in the first place. At this time, we were encountering heavy silence about race throughout the curriculum, even though we knew that it lay just beneath the surface of many of our courses.[75]

Last, the students had hoped that reinstating Bell’s course, or something like it, might be an opportunity to recruit minority professors to the school to fill the diversity void.

The truth of the matter was that the course they sought quite simply was not part of the core mission of the law school and there was no sense of urgency to staff it.[76]

Through all of this, what became clear to these students was that, though the school had successfully diversified its student body, it had failed to bring about similar changes in its own power structure, decision making, and educational commitments. The disproportionate dearth of Black professors and coursework on race and law suggested that Harvard may have had a commitment to diversification of customers, but had little commitment to diversification of faculty, leadership, or content—arguably the most important measures of an institution’s civil rights commitments. It was apparent that those invested with institutional power considered it perfectly natural and just to have entirely unequal representation within the halls of leadership, so long as the “standards” were considered race-neutral, color-blind, and accorded with the traditional liberal conception of “merit.”

The dominant discourse on race and merit at the time was completely consistent with the notion that the standards for entry into law teaching were indeed colorblind, and that the so-called pool problem was simply the unfortunate consequence of meritocratic and fully defensible academic standards.[77]

In fact, an institution serving a diverse set of educational “customers” could, it was apparently assumed, justly retain an entirely White faculty and still claim to have honored the goals of the Civil Rights Movement just twenty-five years prior. If the pool was too small, this reasoning inexorably implied, it was a problem falling entirely in the lap of minorities themselves; bootstrapping and time were the appropriate remedies. The Dean, and even many traditional Civil Rights lawyers, appeared to fully endorse a system whose terms of entry were considered fair, effective, and objective measures of “merit,” despite yielding entirely racially disproportionate outcomes.

Notwithstanding its robust policies to advance student diversity, the school drew a line in the sand when it came to faculty, maintaining a firm commitment to “merit.”

The student activists, on the other hand, while not rejecting the concept of academic standards and qualifications per se, rejected the Dean’s liberal appeal to a neutral, color-blind conception of “merit.” “Merit” itself was understood to be a site of justifiable racial critique, given that candidate preference was predicated on entrenched, historically created, and complex social networks which are themselves legitimate sites of racial critique.

[K]ey to the students’ argument was that the discourse around merit was not simply a ruse or somehow false, but that it was the functional embodiment of particular values and practices that reflected the limited scope of what the law school perceived its mission to be. In this sense, the standards were neither objective nor universal. Instead, they were tied to performance within an institution that had been either agnostic toward or supportive of Jim Crow.

A different institutional history would have generated different projects that would in turn have invited alternative conceptions of merit.[78]

Further,

as the students saw things, there was nothing magical or intrinsically compelling about the typical standards offered to justify the virtual absence of faculty of color. A degree from an elite law school, membership on a law review and a Supreme Court clerkship were not the exclusive criteria for identifying candidates who were likely to make substantial contributions both to the educational mission of the school and to the broader goals of advancing legal knowledge. Instead, the traditional criteria were increasingly viewed as an informal and unjustified preference for the social cohort to whom these opportunities were overwhelmingly distributed: white and male candidates.[79]

It was entirely unsurprising that candidates of color would not readily emerge from a pool they had largely been prohibited from entering.[80]

The only way to maintain these claims of objectivity and race neutrality was to assume that racism, or even racialized differential access, was an occasional event, was only perpetrated by ill-willed individuals, was an irrational aberration from the race-neutral social norm, and, finally, that people of color who had not met Harvard’s “standards” had only themselves to blame, unless specific discriminatory events could be cited and proven causal. In short, the students were asked to just assume that the playing field was already neutral, that every player began with zero points, and that cheaters would be addressed if caught explicitly breaking the rules. The hierarchical creation of race in America, its holistic effects on law, common ideas, common consciousness, and even the exemplar of universal fairness—merit—were either ignored or treated as unimportant to the calculus. Dr. Crenshaw explains at length:

[U]nderlying the School’s inability to think beyond the pool problem was a failure to bring [its student diversification] commitments inside the institution’s everyday practices and norms, a failure to re-evaluate the givens and non-negotiables with an eye toward rethinking those dimensions of law school practice that were forged in, consistent with, and facilitated by formalized inequality.

It was at least remotely possible to imagine that aspects of legal education that had easily co-existed with and even normalized racial subordination might be reviewed with a skeptical eye whether or not the institution itself formally practiced segregation. The wholesale failure to consider the interests of underserved communities, the failure to interrogate the gaping contradictions between the formal commitment to the rule of law and the realities of racial dictatorship through much of the nation’s history, the failure to reward innovative legal theories or to explore the reformist potential of legal advocacy—all these features of the pre-civil rights elite legal education might have been viewed from a position of skepticism given their collaborative role in normalizing broad scale societal stratification. That “excellence” and “merit” could be attached to legal thinking that consistently failed to take up some of the most complex legal problems in society was troubling enough during segregation’s tenure, but to effortlessly reproduce these values in a postsegregation world seemed to undermine rather than enhance the claims of social progress.

Re-evaluating the role of legal education in such a light would have revealed the existence of several possible professors who were skilled at producing and teaching aspects of legal practice that were new to the curriculum. Yet in refusing the expectations of a new population of students, the School effectively held itself as the arbiter of what was important in legal training and what was not, whose legal problems would be served by Harvard Law School and which interests would not.

Obviously, a different conception of what interests and constituencies the Law School would serve would have created a different “pool” of people qualified to teach there. The School, however, was stubbornly attached to its traditional view of merit and its particular mission. Its insistence on viewing the crisis through the prism of the pool was a repudiation of the students’ larger demands that it rethink its foundational assumptions about how to prepare a new generation of students for the careers that they there were planning to pursue.[81]

Predictably, the students boycotted the Dean’s mini-course and instead organized an “Alternative Course.” Derrick Bell’s Race, Racism and American Law served as the organizing text for the course and scholars from law schools around the nation were invited to teach a chapter. The course was a success. According to Dr. Crenshaw,

The themes and ideas that emerged from this collective engagement between students and young professors would eventually cohere as a set of texts that would become part of the Critical Race Theory canon. The Alternative Course also lit a fuse that would explode into a national debate, exposing the hidden fault lines that had long existed within the civil rights constituency. While many in the CRE saw the students’ protest as an embodiment of black power politics that they sought to discredit, the students saw meritocracy as the new lunch counters in the struggle over law, knowledge, and power.[82]

16. CRT Commonplaces

So, what then is this “Critical Race Theory”? Answering this question is fraught with difficulty. Some might even argue that there simply is no good answer. I’m a bit more optimistic, so long as we heed Dr. Crenshaw’s corrective:

CRT is not so much an intellectual unit filled with natural stuff—theories, themes, practices, and the like—but one that is dynamically constituted by a series of contestations and convergences pertaining to the ways that racial power is understood and articulated in the post-civil rights era. In the same way that Kendall Thomas reasoned that race was better thought of as a verb rather than a noun, I want to suggest that shifting the frame of CRT toward a dynamic rather than static reference would be a productive means by which we can link CRT’s past to the contemporary moment.[83]

Thus, tightly defining and policing the boundaries of what should be considered proper “CRT scholarship” tends to prescribe in advance the internal critical dynamic that is itself, supposedly, a feature of the theory, threatening to calcify CRT into a particular historical contestation with diminishing applicability to ever new contexts. This approach is, in important ways, directly contrary to the intentions of CRT scholars, going all the way back to the Alternative Course. It has also proven, at times, to create unnecessary conflict with ideological kin, such as LatCrit and AsianCrit Theory. But I, nevertheless, tend to agree with Devon Carbado, that

[a]t the same time, in any given moment, there should be a set of (even provisional) ideas and frames that are available for mobilization and that are themselves re-constituted in the process.[84]

And I think Dr. Crenshaw agrees as well, as she, along with Mari Matsuda, Charles Lawrence III, and Richard Delgado, has offered her own answer to “What is critical race theory?,” even calling the list they produced “defining elements” (Words That Wound, pp. 2 – 3). Likewise, Richard Delgado and Jean Stefancic answer the same question in both Critical Race Theory: The Cutting Edge and Critical Race Theory: An Introduction, calling their lists “prime critical themes” and “basic tenets” respectively (see pp. 4 – 6 and pp. 8 – 10). Last, in one of my favorite treatments, “Critical What What,” CRT scholar Devon Carbado answers, “What are (or should be) some of CRT’s core ideas?” (see pages 1607 – 1615).

In what follows, I will quote verbatim from each of these treatments, thematically organizing them into eleven “commonplaces,” with my own description preceding each commonplace. I’ve chosen to refer to them as “commonplaces” to make clear that, while these ideas enjoy fairly broad endorsement throughout the CRT community—particularly among its founders, neither I nor they would consider them, taken together, a proper definition. Last, I’ve taken the treatment in Words That Wound, given its authorship, to be normative throughout, with the other treatments used merely to add, expand, or clarify. And to be clear, these are simply statements of ideas, not arguments for them; they should draw you into the “Further Reading” section at the end, not send you away satisfied.

1. Race is Socially Constructed

Race is not a natural, biological, “out there” entity such that it exists independently of law and society. Rather, it is a product of human social interaction, a construction of social reality. Further, race and racial categories were historically created to justify and maintain social hierarchy, slavery, and other forms of group-based exploitation, as well as to distribute rights, citizenship, privileges, access, and disparate advantages/disadvantages.

CRT also weighs-in directly on the very idea of race, rejecting the conception of race as a biological fixed social category and arguing instead that race is socially constructed. (Carbado, “Critical What What”)

[T]he “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are categories that society invents, manipulates, or retires when convenient. People with common origins share certain physical traits, of course, such as skin color, physique, and hair texture. But these constitute only an extremely small portion of their genetic endowment, are dwarfed by what we have in common, and have little or nothing to do with distinctly human, higher-order traits, such as personality, intelligence, and moral behavior. That society frequently chooses to ignore these scientific truths, creates races, and endows them with pseudo-permanent characteristics is of great interest to critical race theory. (Delgado & Stefancic, Introduction)

2. Differential Racialization

Race, as an historically contingent artifact, was constructed to serve different social needs for differing social purposes at different times and in different places throughout history. Therefore, not all “races” were historically constructed along the same lines, nor imbued with the same set of characteristics, nor are these constructions particularly stable through time.

Another, somewhat more recent, development concerns differential racialization and its consequences. Critical writers in law, as well as in social science, have drawn attention to the ways the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market. (Delgado & Stefancic, Introduction)

Critical Race Theorists pursue this project across racial groups, and in the context of doing so try to avoid what Angela Harris might refer to as the pitfalls of essentialism.” While some would say CRT scholars are anti-essentialist, it would be more accurate to say that we aspire to be antiessentialist. The distinction is important. Because to invoke any social category is already to essentialize, the question is not whether we engage in essentialism but rather the normative work we deploy that essentialism to perform. (Carbado, “Critical What What”)

3. Intersectionality

Further, because race has been socially constructed to serve different purposes for different groups at different times, race is inextricably linked with other social constructions and/or social arrangements developed by dominant groups to distribute protections, rights, citizenship, privileges, access, advantages, and disadvantages. As such, “race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but rather as reciprocally constructing phenomena” (Patricia Hill Collins).

No person has a single, easily stated, unitary identity. … Everyone has potentially conflicting, overlapping identities, loyalties, and allegiances. (Delgado & Stefancic, Introduction)

Critical race theory works toward the end of eliminating racial oppression as part of the broader goal of ending all forms of oppression. Racial oppression is experienced by many in tandem with oppression on grounds of gender, class, or sexual orientation. Critical race theory measures progress by a yardstick that looks to fundamental social transformation. The interests of all people of color necessarily require not just adjustments within the established hierarchies, but a challenge to hierarchy itself. This recognition of intersecting forms of subordination requires multiple consciousness and political practices that address the varied ways in which people experience subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

The theory is thus committed to what Crenshaw has called “intersectionality”—and, more specifically, to an intersectional engagement of structural hierarchies. This engagement endeavors not only to “look to the bottom,” to borrow from Mari Matsuda; it also seeks to “look to the top.” In other words, the theory seeks to make clear that there is a “top” and a “bottom” to discrimination and that, historically, racism has been bi-directional: It gives to whites (e.g., citizenship) what it takes away from or denies to people of color. (Carbado, “Critical What What”)

4. Racism is Endemic to American Life

Because race was historically constructed by, in tandem with, and as integral to other central formative American systems and institutions—including American law, government, nation, politics, religion, human geography, economic structure, and distributive schemas—the attendant racial hierarchies and ideologies are likewise integral to American life and its institutions.

Critical race theory recognizes that racism is endemic to American life. Thus, the question for us is not so much whether or how racial discrimination can be eliminated while maintaining the integrity of other interests implicated in the status quo such as federalism, privacy, traditional values, or established property interests. Instead we ask how these traditional interests and values serve as vessels of racial subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

It is, to put it the way Daria Roithmayr might, “locked-in.” This locked-in feature of racism is linked to our very system of democracy. Which is to say, historically, racism has been constitutive of, rather than oppositional to, American democracy. This does not mean that racism is an expression of American democracy. That would be putting the point too strongly. It is more accurate to say that racism was built into the constitutional architecture of American democracy. As Rachel Moran and I explain elsewhere, “[t]he drafters of the Constitution took a sober second look at the rhetoric of radical egalitarianism in the Declaration of Independence, and they blinked. The adoption of the Constitution in 1787 and its ratification one year later depended on a compromise, one that integrated slavery into the very fabric of American democracy.” The lingering effects of this foundational moment—or the ongoing relationship between racial inequality and American democracy is precisely what Gunnar Myrdal referred to as an “American dilemma.” (Carbado, “Critical What What”)

5. CRT is Skeptical of Claims to Neutrality, Objectivity, Color-Blindness, and Meritocracy

Because racism is endemic to American life and institutions, concepts like neutrality, objectivity, color-blindness, and merit are viewed by CRT scholars as sites of racial formation and preservation, as historical artifacts containing their own racial ideologies, racial logics, and racial preferences, and are therefore legitimate sites of racial critique. CRT judges decision procedures not by their facial neutrality or objectivity, but by their remedial effectiveness in addressing the subordinated circumstances of people of color.

Critical race theory expresses skepticism toward dominant legal claims of neutrality, objectivity, color blindness, and meritocracy. These claims are central to an ideology of equal opportunity that presents race as an immutable characteristic devoid of social meaning and tells an ahistorical, abstracted story of racial inequality as a series of randomly occurring, intentional, and individualized acts. (Matsuda, Lawrence III, Delgado, & Crenshaw, Words That Wound)

One way the theory does so is by challenging two dominant principles upon which American anti-discrimination law and politics rest—to wit, that colorblindness necessarily produces race neutrality and that color consciousness necessarily produces racial preferences. By historically contextualizing existing racial inequalities, CRT is able both to contest the [colorblindness/race-neutrality]/[color-conscious/racial preferences] alignments and to reverse them. The theory effectuates this reversal by demonstrating how colorblindness can produce racial preferences and how color consciousness can neutralize and disrupt embedded racial advantages. (Carbado, “Critical What What”)

CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race: Law has historically employed race as a basis for group differentiation, entrenching the idea that there are “in fact” different races; law has helped to determine the racial categories (e.g., Black, White, Yellow) into which institutions and individuals place people; law sets forth criteria or rules (e.g., phenotype and ancestry) by which we map people into those racial categories; law has assigned social meaning to the categories (e.g., Whites are superior; Blacks are inferiors; Japanese Americans are disloyal); law has employed those meanings to structure hierarchical arrangements (e.g., legalized slavery for inferior people (Blacks) and legalized internment for people who are disloyal (people of Japanese descent)); and those legal arrangements, in turn, have functioned to confirm the social meanings that law helped to create (e.g., the people who are enslaved must be inferior; that is why they are enslaved; the people who are interned must be disloyal; that is why they are interned). (Carbado, “Critical What What”)

6. Racism is a Structural Phenomenon and Explains Current Maldistributions

As such, racism is primarily a problem of historically racialized systems—created for the distribution of social, political, and economic goods—continuing to perform as it was historically created, even in our supposedly “post-racial” legal era.

Critical race theory challenges ahistoricism and insists on a contextual/historical analysis of the law. Current inequalities and social/institutional practices are linked to earlier periods in which the intent and cultural meaning of such practices were clear. More important, as critical race theorists we adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines, including differences in income, imprisonment, health, housing, education, political representation, and military service. Our history calls for this presumption. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

CRT repudiates the view that status quo arrangements are the natural result of individual agency and merit. We all inherit advantages and disadvantages, including the historically accumulated social effects of race. This racial accumulation—which is economic (shaping both our income and wealth), cultural (shaping the social capital upon which we can draw), and ideological (shaping our perceived racial worth)—structure our life chances. CRT exposes these inter-generational transfers of racial compensation. Building up over time to create racial shelters (hidden and protected racial privileges) and racial taxes (hidden and unprotected racial costs), racial compensation profoundly shapes and helps to support the contemporary economies of racial hierarchy. (Carbado, “Critical What What”)

Each of these efforts is part of a broader CRT project to articulate racism as a structural phenomenon, rather than as a problem that derives from the failure on the part of individuals and institutions to treat people formally the same. (Carbado, “Critical What What”)

7. CRT is Discontent with Liberalism and the Standard Racial Progress Narrative

On the other hand, liberalism conceptualizes racism as an aberration, a departure from the social norm. Therefore, liberalism tends to idealize the problem of racism as (1) prejudice, bias, and stereotype, (2) discrimination, or “allowing race to count for anything,” and (3) mere physical separation of races. Liberal answers to racism, accordingly, are (1) increased knowledge, (2) color-blindness, and (3) racial “mixing”; and, of course, plenty of time to allow “enlightenment” to run its natural course.

CRT scholars, alternatively—due to the contingent history of racial construction and the embedded nature of racism—view such liberal diagnoses and remedies as means of preserving the status quo, viz., preserving and legitimating the current maldistribution of social power and the racially subordinated circumstances embedded within.

Virtually all critical race theory is marked by a deep discontent with liberalism, a system of civil rights litigation and activism characterized by incrementalism, a faith in the legal system, and hope for progress, among other things. (Delgado & Stefancic, Cutting Edge)

CRT rejects the standard racial progress narrative that characterizes mainstream civil rights discourse—namely, that the history of race relations in the United States is a history of linear uplift and improvement. (Carbado, “Critical What What”)

8. Interest Convergence

Because of the embedded nature of racism, due to the historical nature of racial construction, racial progress is often ephemeral, and always prioritized in contrast with the rest of the traditional liberal program—i.e., individual freedom, freedom of association, free markets, vested interests, property rights, etc. Significant change normally occurs only when the latter interests are threatened by racist policy and thereby converge with the interests of people of color. When these interests change, the fortunes of Black Americans are in turn reversed. The dialectic of racial reform and retrenchment is a central CRT analytic.

“[I]nterest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class whites (psychically), large segments of society have little incentive to eradicate it. Consider, for example, Derrick Bell’s shocking proposal … that Brown v. Board of Education—considered a great triumph of civil rights litigation—may have resulted more from the self-interest of elite whites than from a desire to help blacks. (Delgado & Stefancic, Introduction)

The broader point is that one of CRT’s key claims is that racial reform and racial retrenchment are defining aspects of American law and politics. (Carbado, “Critical What What”)

9. Unique Voice of Color Thesis

Those who have been, and continue to be, marginalized through social identification with historically constructed groups are thereby uniquely placed to address their unique social, legal, political, and economic subordination, as they “are more likely to have had experiences that are particularly epistemically salient for identifying and evaluating assumptions that have been systematically obscured or made less visible as the result of power dynamics” (Kristen Intemann). In this manner, embedded, seemingly invisible, systems of racism can be made more visible to those who have been socialized as members of other historically constructed groups.

Critical race theory insists on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society. This knowledge is gained from critical reflection on the lived experience of racism and from critical reflection upon active political practice toward the elimination of racism. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

Minority status, in other words, brings with it a presumed competence to speak about race and racism. The “legal storytelling” movement urges black and brown writers to recount their experiences with racism and the legal system and to apply their own unique perspectives to assess law’s master narratives. (Delgado & Stefancic, Introduction)

10. CRT Aspires to be Interdisciplinary and Eclectic

Further, since race is not a natural entity but a social construct, and since racism is thereby embedded in American society through its historical construction, race and racism are particularly amenable to fruitful interrogation by aspects of both Critical Theory and post-modernism/structuralism. Accordingly, CRT scholars seek to deconstruct these systems and ideologies, but with an eye toward reconstruction and liberation. More broadly, CRT seeks to incorporate a wide range of traditions and disciplines in order to address the various and sundry ways racialization is embedded throughout society.

Critical race theory is interdisciplinary and eclectic. It borrows from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism. This eclecticism allows critical race theory to examine and incorporate those aspects of a methodology or theory that effectively enable our voice and advance the cause of racial justice even as we maintain a critical posture. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

11. CRT is Both Theory and Praxis

In the end, CRT seeks not only to understand race and racial subordination, but to change the subordinated circumstances of marginalized peoples. CRT scholars understand that consistent, effective, liberative critical social theory cannot separate the construction of social knowledge from the active redistribution of social power.

Even our most celebrated constitutional frameworks, such as “equal protection” and “due process,” can function as repositories of racial power. CRT reflects “a desire not merely to understand . . . [these and other] vexed bond[s] between law and racial power but to change … [them].” The theory is both pragmatic and idealistic. It grapples with the immediacies of now without losing sight of the transformative possibilities of tomorrow. (Carbado, “Critical What What”)

At bottom, I might suggest, Critical Race Theory is the radical abolitionist and Civil Rights tradition critically transformed to address a post-Civil Rights legal era rooted in the liberal ideology of “color-blindness” and “equal opportunity,” which have together preserved and legitimated the continuation of racially subordinated circumstances.

Further Reading

These readings are directly related to what’s been covered in this article and, unfortunately, represent only what I personally am familiar with. Thus, these resources are both limited by my own familiarity and also by the specific scope of this article. Feel free to contact me with requests for recommendations on specific topics not covered in this piece.

1. Civil Rights Retrenchment: Why?

• “The Christian and Critical Race Theory, Part 2: The Segregationist Discourse and Civil Rights Retrenchment,” by Bradly Mason
• “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” by Kimberlé Crenshaw

2. CRT Forerunners: Derrick Bell and Alan Freeman

• “The Christian and Critical Race Theory, Part 3: A Bridge: Dr. Derrick Bell,” by Bradly Mason
• “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation,” Derrick Bell
• “Racial Remediation: An Historical Perspective on Current Conditions,” by Derrick Bell
• “Brown v. Board of Educationand the Interest Convergence Dilemma,” by Derrick Bell
• The Derrick Bell Reader, edited by Richard Delgado and Jean Stefancic
• Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform, by Derrick Bell
• Faces at the Bottom of the Well, by Derrick Bell
• “The Christian and Critical Race Theory, Part 4: Alan Freeman and the Contribution of CLS,” by Bradly Mason
• “Legitimizing Racial Discrimination Through Antidiscrimination Law,” by Alan Freeman

3. CRT: An Intervention Into CLS

• The Critical Legal Studies Movement: Another Time, A Greater Task, by Roberto Unger
• “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” by Kimberlé Crenshaw
• “Looking to the Bottom: Critical Legal Studies and Reparations,” by Mari Matsuda
• “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton

4. Alignment of CLS and CRT: A Common Foe

• “The Christian and Critical Race Theory, Part 5: A Misalignment of Frames: Integrationism,” by Bradly Mason
• “Race Consciousness,” by Gary Peller
• “History, Identity, and Alienation Commentary,” by Gary Peller

5. CLS: Offspring of Legal Realism

• “American Legal Realism,” by L. L. Fuller
• “Some Realism About Critical Legal Studies,” by Richard Michael Fischl

6. CLS: A Rejection of “Vulgar” Marxism

• “Christianity and Critical Theory, Part 1: Marx and Frankfurt,” by Bradly Mason
• “CLS and Marxism: A History of an Affair,” by Akbar Rasulov
• “Some Realism About Critical Legal Studies,” by Richard Michael Fischl
• “Marxism as Metaphor,” by Mark V. Tushnet
• “The Role of Law in Economic Thought,” by Duncan Kennedy

7. CLS: A “Critical” Project

• “Critical Theory, Structuralism and Contemporary Legal Scholarship,” by David Kennedy
• “Traditional and Critical Theory,” by Max Horkheimer
• Critical Theory: A Very Short Introduction, by Stephen Bronner

8. CLS: Antonio Gramsci and Hegemony

• Beyond Critique, edited by Bradley Levinson, pp. 51 – 76

9. CLS: Postmodernism/Poststructuralism

• “Reason and the Mob: The Politics of Representation,” by Gary Peller
• “Critical Theory, Structuralism and Contemporary Legal Scholarship,” by David Kennedy
• Postmodernism: A Very Short Introduction, by Christopher Butler

10. Alignment and Misalignment: Points of Departure

• “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” by Kimberlé Crenshaw
• “The Imperial Scholar: Reflections on a Review of Civil Rights Literature,” by Richard Delgado
• “Looking to the Bottom: Critical Legal Studies and Reparations,” by Mari Matsuda
• “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton
• “The Christian and Critical Race Theory, Part 7: A Race Intervention into Critical Legal Studies,” by Bradly Mason

11. CLS Charges Race Crits with “Racialism”

• “Introduction,” Critical Race Theory: The Key Writings That Formed a Movement, edited by Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas
• “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” by Devon Carbado and Cheryl Harris

12. Overemphasis on “Consent” as Opposed to “Coercion”

• “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” by Kimberlé Crenshaw

13. CLS’s Critique of “Rights” Discourse

• “Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Color,” by Robert A. Williams Jr.
• “Looking to the Bottom: Critical Legal Studies and Reparations,” by Mari Matsuda
• “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton
• “The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, by Patricia J. Williams

14. Modernism vs. Postmodernism: A Defining CRT Tension

• “The Jurisprudence of Reconstruction,” by Angela Harris
• “Who’s Afraid of Critical Race Theory?,” by Derrick Bell
• “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” by Devon Carbado and Cheryl Harris

15. The Harvard Law Affair

• “The First Decade: Critical Reflections, or A Foot in the Closing Door,” by Kimberlé Crenshaw
• “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” by Kimberlé Crenshaw
• “Race Liberalism and the Deradicalization of Racial Reform,” by Kimberlé Crenshaw
• “Liberal McCarthyism and the Origins of Critical Race Theory,” by Richard Delgado
• “The Christian and Critical Race Theory, Part 8: the Harvard Story and the Birth of “Critical Race Theory,” by Bradly Mason

16. CRT Commonplaces

• Critical Race Theory: An Introduction, by Richard Delgado and Jean Stefancic
• Critical Race Theory: The Key Writings That Formed a Movement, edited by Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas
• Critical Race Theory: The Cutting Edge, edited by Richard Delgado and Jean Stafancic
• Seeing Race Again: Countering Colorblindness Across the Disciplines, edited by Kimberlé Crenshaw
• Critical Race Theory: A Primer (Concepts and Insights), by Khiara Bridges
• “Who’s Afraid of Critical Race Theory?,” by Derrick Bell
• “The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice,” by Ian Haney Lopez
• “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” by Charles R. Lawrence III
• “A Critique of ‘Our Constitution is Color-Blind’,” by Neil Gotanda
• “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” by Kimberlé Crenshaw
• “Equal Treatment and the Reproduction of Inequality,” by Cheryl Harris
• “Critical What What,” by Devon Carbado
• “What is Critical Race Theory and Why is Trump Afraid of it?,” by Cheryl Harris
• “The Christian and Critical Race Theory,” series by Bradly Mason

---

[1] See, e.g., “Celebrating Critical Race Theory at 20,” by Angela Onwuachi-Willig

[2] “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” pp. 1332-1333

[3] ibid., p. 1337

[4] See “The Christian and Critical Race Theory, Part 2: The Segregationist Discourse and Civil Rights Retrenchment”

[5] “Why Judge Bork is Unacceptable”

[6] “Marshall Puts Reagan at ‘Bottom’ Among Presidents on Civil Rights”

[7] “Racial Remediation: An Historical Perspective on Current Conditions,” p. 6

[8] “Critical What What,” p. 1607

[9] “Brown v. Board of Education and the Interest Convergence Dilemma,” p. 523

[10] Critical Race Theory: The Key Writings That Formed a Movement, p. 2

[11] See, e.g., “The Christian and Critical Race Theory, Part 1: A Survey of the ‘Traditional Civil Rights Discourse’”

[12] “The First Decade: Critical Reflections, or A Foot in the Closing Door,” p. 1347

[13] ibid., p. 1347

[14] Critical Race Theory: The Key Writings That Formed a Movement, p. 3

[15] For points 1, 2, and 4, see “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1051; for point 3, see “Some Realism About Critical Legal Studies,” p. 513).

[16] “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1049

[17] Critical Race Theory: The Key Writings That Formed a Movement, p. XXIV

[18] “Looking to the Bottom: Critical Legal Studies and Reparations,” Critical Race Theory: The Key Writings That Formed a Movement, p. 64

[19] “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” 1287 – 1288

[20] Gary Peller, “History, Identity, and Alienation,” p. 1483

[21] Gary Peller, “Race Consciousness,” p. 774

[22] ibid., p. 760

[23] “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1103

[24] “Marxism as Metaphor,” pp. 281 – 282

[25] “Some Realism About Critical Legal Studies,” p. 530

[26] As quoted by Duncan Kennedy, “The Role of Law in Economic Thought,” p. 979

[27] “Some Realism About Critical Legal Studies,” p. 530

[28] “Marxism as Metaphor,” p. 285

[29] Crenshaw et al., Critical Race Theory, p. XXIV

[30] ibid., p. XXIV; emphasis mine)

[31] ibid., p. XXV

[32] “Traditional and Critical Theory,” pp. 206-207

[33] Patrica Hill Collins, Intersectionality as Critical Social Theory, Location 1314

[34] “The Jurisprudence of Reconstruction,” p.743

[35] “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1350

[36] Bradley Levinson, Beyond Critique, pp. 52-53

[37] “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1351

[38] “Reason and the Mob: The Politics of Representation,” p. 29

[39] ibid., p.29

[40] ibid., p. 30

[41] “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” pp. 1288 – 1289

[42] For what I’ve left unaddressed, please see, for example, “Looking to the Bottom: Critical Legal Studies and Reparations,” by Mari Matsuda,  and “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton

[43] Devon Carbado and Cheryl Harris, “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” p. 2213

[44] Critical Race Theory: The Key Writings That Formed a Movement, p. XXV

[45] ibid., p. XXV

[46] ibid., p. XXV

[47] “Critical What What,” p. 1610

[48] ibid., p. 1615

[49] “Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Color,” p. 118

[50] “Race, Reform, and Retrenchment,” p. 1358

[51] “Taking Rights Aggressively,” pp. 117 – 118

[52] As quoted by Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1353

[53] “Taking Rights Aggressively,” p. 120

[54] ibid., p. 121

[55] ibid., p. 123

[56] ibid., p. 121

[57] “The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, p. 87

[58] “The Jurisprudence of Reconstruction,” p. 750

[59] ibid., p. 751

[60] ibid., p. 743

[61] ibid., p. 753

[62] ibid., pp. 753 – 754

[63] “Who’s Afraid of Critical Race Theory?,” p. 78

[64] “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” pp. 2214 – 2215

[65] via Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1353

[66] “The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, p. 88

[67] “The Jurisprudence of Reconstruction,” p. 765

[68] “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” p. 1288

[69] ibid., p.1264

[70] For alternative institutional origins, see “Liberal McCarthyism and the Origins of Critical Race Theory,” by Richard Delgado

[71] “Twenty Years of Critical Race Theory,” p. 1264

[72] “The First Decade: Critical Reflections, or A Foot in the Closing Door,” p. 1348

[73] “Twenty Years of Critical Race Theory,” p. 1267

[74] ibid., pp. 1267 – 1268

[75] “The First Decade,” p. 1349

[76] “Twenty Years of Critical Race Theory,” p. 1267

[77] ibid., p. 1268

[78] ibid., p. 1286

[79] ibid., p. 1269

[80] ibid., p. 1272

[81] ibid., pp. 1273 – 1274

[82] “Race Liberalism and the Deradicalization of Racial Reform,” pp. 2312 – 2313

[83] “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” p. 1261

[84] “Critical What What,” p. 1607

[85] “Intersectionality’s Definitional Dilemmas,” p. 1; emphasis mine