Bradly Mason

Critical Race Theory (CRT) is, at bottom, the radical civil rights tradition critically transformed to address a post-Civil Rights legal era rooted in the liberal ideology of “color-blindness” and “equal treatment,” which have together preserved and legitimated the continuation of racially subordinated circumstances.

Broadly speaking, two visions of civil rights law emerged out of the Civil Rights Movement (CRM). On the one hand, White progressives, along with the developing Black middle-class, centered their continued civil rights vision on the analytics of prejudice, discrimination, and segregation. That is, the social problem of racism was understood to be personal prejudice and bias due to irrationally allowing physical and ancestral difference to justify partiality; discrimination was thought to be the specific, individuatable, and intentional actions resulting from personal prejudice—in particular, allowing race to figure into decision-making; and, last, segregation was thought to be the social, legal, and political manifestation of prejudice and discrimination.

So construed, the remedy for racism was to overcome prejudice with knowledge and enlightenment, to overcome discrimination with color-blindness—not allowing race to “count for anything”—and, finally, to overcome segregation with racial “mixing” and absorption of minority communities into dominant communities, i.e., integration. CRT scholar Gary Peller has dubbed this analysis “liberal integrationism,” and it quickly became the dominant analysis of American “race relations” by the beginning of the 1970s (Peller 1990).

On the other hand, a much older tradition contained in various Black nationalisms, going back to at least the latter part of the 18^th century, was also central to the CRM, exemplified by activists as seemingly disparate as Martin Luther King, Jr. and Huey P. Newton. Rather than prejudice, discrimination, and segregation, this traditional Black activist analysis was centered on power, subordination, and the metaphor of colonialism. That is, the problem of racism in American society was understood to be the extreme power differential between the White and Black communities; the social and legal subordination of people-groups was understood to be the primary evil of racism; and the central metaphor for how the White community has historically related to the Black community was that of colonizer to colonized, not so much physical separation. In the words of Dr. King,

… one of the great problems that the Negro confronts is his lack of power. From the old plantations of the South to the newer ghettos of the North, the Negro has been confined to a life of voicelessness and powerlessness. Stripped of the right to make decisions concerning his life and destiny, he has been subject to the authoritarian and sometimes whimsical decisions of the white power structure. The plantation and the ghetto were created by those who had power both to confine those who had no power and to perpetuate their powerlessness. The problem of transforming the ghetto is, therefore, a problem of power—a confrontation between the forces of power demanding change and the forces of power dedicated to preserving the status quo. … Power, properly understood, is the ability to achieve purpose. It is the strength required to bring about social, political or economic changes. In this sense power is not only desirable but necessary in order to implement the demands of love and justice. … There is nothing essentially wrong with power. The problem is that in America power is unequally distributed. (King 1968, 37 – 38)

The remedy, accordingly, was understood to be redistribution of social, legal, and political power, liberation of subordinate communities from the domination of the White community, and a reparations model of justice intended to democratically transfer illegitimately appropriated power and resources from colonizer to colonized. Even those, like Dr. King, who opposed the segregationist tendencies of some Black nationalists also opposed the liberal integrationist vision of absorption of Black institutions and norms into White institutions and norms. In King’s words,

On the one hand, integration is true intergroup, interpersonal living. On the other hand, it is the mutual sharing of power. I cannot see how the Negro will be totally liberated from the crushing weight of poor education, squalid housing and economic strangulation until he is integrated, with power, into every level of American life. … [M]any liberals have fallen into the trap of seeing integration in merely aesthetic terms, where a token number of Negroes adds color to a white-dominated power structure. (King 1968, 64, 93)

And he goes on to endorse a reparations model of remediation:

It is … important to understand that giving a man his due may often mean giving him special treatment. I am aware of the fact that this has been a troublesome concept for many liberals, since it conflicts with their traditional ideal of equal opportunity and equal treatment of people according to their individual merits. … A society that has done something special against the Negro for hundreds of years must now do something special for him, in order to equip him to compete on a just and equal basis. (95)

Despite this tradition, the success of the liberal integrationist model has all but outlawed this more “radical” Black activist analysis from public discourse, treating such claims as themselves “racist.” 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. Simply put, contrary to the traditional Black activist analysis, to be “not racist” in post-CRM America is to not “see race,” to not allow race to “count for anything.” And the legal correlate of this integrationist ethic has been to understand “equal protection under the law” to mean color-blind “equal treatment for all,” regardless of racially subordinated historical circumstances. In short, race-based remedies for historically created race-based disparities (e.g., affirmative action, disparate impact suits, reparations) came to be considered themselves “racist” and legally subject to heightened scrutiny. Accordingly, implementation of the substantive intentions of the Civil Rights Acts were superseded by mere facially race-neutral policies.

Derrick Bell, the first tenured Black professor at Harvard Law, became a central figure in the development of CRT given his unique relationship to both of these ideologies. In accordance with the liberal integrationist analysis, Dr. Bell had himself litigated nearly 300 school desegregation cases at the height of the CRM, enforcing the Court’s dictates under Brown v. Board of Education to end segregation. But, consistent with his more radical traditional Black nationalist understanding of civil rights, Dr. Bell eventually came to see the limitations of such litigation. Shortly following Brown and the passage of the Civil Rights Acts, the measurable disparity between Black and White Americans in wealth, income, education, home-ownership, and nearly every other social and economic category had not only proven persistent, but many hard-fought gains appeared to be in retrenchment. Further, through the analytics of liberal integrationism, these vast society-wide social and economic disparities were quickly becoming rationalized as legitimate, natural, and even just. With formal barriers removed, according to much of American society by the 1980s, any continued racial disparity could be attributed to some form of racial inferiority, whether it be nature, culture, or behavior.

In his groundbreaking 1976 “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation,” Dr. Bell called into question the tangible benefits of the liberal integrationists’ 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 integrationist lawyers had assumed.

Leading CRT scholar and intellectual offspring of Dr. Bell, Kimberlé Crenshaw, explains well Bell’s subsequent approach as a legal scholar and professor in the context of liberal integrationist legal academia.

Traditional scholarship on race was at this point [1980s] 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.

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. (Crenshaw 2002, 1347)

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 Dr. Bell, Critical Legal Studies (CLS) scholars were also working in parallel to explain the stall of substantive civil rights reforms and the weaknesses of antidiscrimination law. According to CLS scholars, 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. Rather, the law is radically indeterminant, and therefore court holdings and legal reasoning generally reflect the changing moral commitments of a society. Law is, therefore, not neutral but is itself ideological, a contingent artifact of social history. Accordingly, 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, is more likely to legitimate 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.

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. (Crenshaw 2011, 1287 – 1288)

Thus, Critical Race Theory is in part uniquely identified by its many alignments and misalignments with Critical Legal Studies.

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. (Harris 1994, 743)

Ultimately, it was the redirection of civil rights and antidiscrimation scholarship afforded by Derrick Bell and Critical Legal Studies, as well as institutional contestations at leading law schools throughout the nation, which led a group of young legal students and professors, including Richard Delgado, Kimberlé Crenshaw, Mari Matsuda, Neil Gotanda, Stephanie Phillips, Cheryl Harris, Kendall Thomas, Gary Peller, Charles Lawrence III, and many more, to develop a critical theory of race. The first annual CRT Workshop was held in Madison, WI on July 8, 1989, titled “New Developments in CRT.” It was here that many of these scholars began to more intentionally delineate the contours of this critical approach to civil rights legal theory.

What would develop was less a tightly circumscribed ideology and more a set of commonplaces which might distinguish the CRT approach to law and society from near competitors. In fact, there simply is no universally accepted “definition” of CRT, and it may be a disservice to the praxis of the theory to attempt to develop one. As Dr. Crenshaw has written, “the notion of CRT as a fully unified school of thought remains a fantasy of our critics,” (Crenshaw 2002, 1362). Further,

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. (Crenshaw 2011, 1261)

Nevertheless, CRT founders like Drs. Crenshaw, Matsuda, Lawrence, Delgado, as well as Jean Stefancic and Devon Carbado, have offered explicit answers to “What is critical race theory?” (See Words That Wound [Matsuda 1993, 2 – 3], Critical Race Theory: The Cutting Edge [Delgado 2000, 4 – 6], Critical Race Theory: An Introduction [Delgado 2017, 8 – 10], and “Critical What What” [Carbado 2011, 1607 – 1615].) The following are their suggested “tenets,” or commonplaces, ordered more or less thematically:

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.

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.

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” (Hill Collins 2015, 2).

4. 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.

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

Because racism is endemic to American life, concepts like neutrality, objectivity, color-blindness, and meritocracy are viewed by CRT scholars as sites of racial formation and preservation, as historical artifacts containing their own racial ideologies and racial logics, and are therefore legitimate sites of racial critique. CRT judges decision procedures by their remedial effectiveness in addressing the subordinated circumstances of people of color, rather than judging them by their formal appearance of race-neutrality or facial objectivity.

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 created, even in a supposedly “post-racial” legal era.

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.

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.

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” (Intemann 2010, 791). 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.

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.

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.

By means of these analytical tools, Critical Race Theorists work to denaturalize the racial disparity which has persisted through the Civil Rights Movement and continues to this day, unmasking its origin in the contingent human construction of race, racism, and racial hierarchy, constituted primarily through the creative and legitimating function of law. And what humans have created, humans can dismantle.

[For a fuller introduction to CRT, as well as a list for further reading, please see, “What is Critical Race Theory? An Introduction to the Movement and its Ideas (With Further Reading).”]

Bibliography

Carbado, Devon W., 2011. “Critical What What Commentary: Critical Race Theory: A Commemoration: Afterword,” Connecticut Law Review. 127.

Crenshaw, Kimberlé W., 2002. “The First Decade: Critical Reflections, or ‘A Foot in the Closing Door,” 49 UCLA L. Rev. 1343

Crenshaw, Kimberlé W., 2011. “Twenty Years of Critical Race Theory: Looking back to Move Forward Commentary: Critical Race Theory: A Commemoration: Lead Article,” Connecticut Law Review. 117.

Delgado, Richard, and Jean Stefancic. 2000. Critical race theory: the cutting edge. Philadelphia: Temple University Press.

Delgado, Richard, and Jean Stefancic. 2017. Critical race theory: an introduction. New York: New York University Press.

Harris, Angela P., 1994. “The Jurisprudence of Reconstruction,” California Law Review. 82.4.

Hill Collins, Patricia, 2015. “Intersectionality’s Definitional Dilemmas,” Annu. Rev. Sociol. 41:1–20.

Intemann, Kristen, 2010. “25 Years of Feminist Empiricism and Standpoint Theory: Where Are We Now?,” Hypatia. 25.4, 778-796.

King, Martin Luther, Jr., 1968. Where Do We Go From Here? Community or Chaos, Boston: Beacon Press, 1994.

Matsuda, Mari J. 1993. Words that wound: critical race theory, assaultive speech, and the First Amendment. Boulder, Colo: Westview Press

Peller, Gary, 1990. “Race Consciousness,” Duke Law Journal. 758-847.