Critical race theory
Critical race theory is a theoretical framework in the social sciences, developed out of epistemic philosophy, that uses critical theory to examine society and culture as they relate to categorizations of race, law, and power. It began as a theoretical movement within American law schools in the mid- to late 1980s as a reworking of critical legal studies on race issues, and is loosely unified by two common themes. Firstly, CRT proposes that white supremacy and racial power are maintained over time, and in particular, that the law may play a role in this process. Secondly, CRT work has investigated the possibility of transforming the relationship between law and racial power, as well as pursuing a project of achieving racial emancipation and anti-subordination more broadly.
By 2002, over 20 American law schools, and at least 3 law schools in other countries, offered critical race theory courses or classes which covered the issue centrally. In addition to law, critical race theory is taught and innovated in the fields of education, political science, women's studies, ethnic studies, communication, sociology, and American studies. Important scholars to the theory include Derrick Bell, Patricia Williams, Richard Delgado, Kimberlé Williams Crenshaw, Camara Phyllis Jones, and Mari Matsuda.
Critics of CRT, including Richard Posner and Alex Kozinski, take issue with its foundations in postmodernism and reliance on moral relativism, social constructionism, and other tenets contrary to classical liberalism.
Definition
According to the UCLA School of Public Affairs:Legal scholar Roy L. Brooks has defined CRT as "a collection of critical stances against the existing legal order from a race-based point of view," adding that:
Origins
In the early 1980s, students of color at Harvard Law School organized protests in various forms to problematize the lack of racial diversity in the curriculum, as well as among students and faculty. These students supported Professor Derrick Bell, who left Harvard Law in 1980 to become the dean at University of Oregon School of Law. During his time at Harvard, Bell had developed new courses which studied American law through a racial lens that students of color wanted faculty of color to teach in his absence. However, the university, ignoring student requests, hired two white civil rights attorneys instead. In response, numerous students, including Kimberlé Crenshaw and Mari Matsuda, boycotted and organized to develop an "Alternative Course" using Bell's Race, Racism, and American Law as a core text and included guest speakers Richard Delgado and Neil Gotanda.The repeated refusals of Harvard Law to acknowledge the requests of students of color led to the self-declaration of critical race theory as an offshoot of critical legal studies in 1987. Crenshaw sent out a call to attend a retreat entitled "New Developments in Critical Race Theory" that effectively created the field under the name CRT. As Crenshaw states, only herself, Matsuda, Gotanda, Chuck Lawrence, and a handful of others knew "that there were no new developments in critical race theory, because CRT hadn't had any old ones–it didn't exist, it was made up as a name. Sometimes you gotta fake it until you make it." Crenshaw states that critical race theorists had "discovered ourselves to be critical theorists who did race and racial justice advocates who did critical theory." Crenshaw writes, "one might say that CRT was the offspring of a post-civil rights institutional activism that was generated and informed by an oppositionalist orientation toward racial power."
Theoretical positions
In regards to CRT as being 'radical', Will Oremus argues:he theory radical…in the sense that it questions fundamental assumptions.… And unlike some strands of academic and legal thought, critical race theory has an open and activist agenda, with an emphasis on storytelling and personal experience. It's about righting wrongs, not just questing after knowledge.… any of their ideas are not radical today in the sense of being outside the mainstream: Critical race theory is widely taught and studied.Recent developments in critical race theory include work relying on updated social psychological research on unconscious bias in order to justify affirmative action; and work relying on law and economic methodology to examine structural inequality and discrimination in the workplace.
Influence of critical legal studies
As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with critical theory, critical legal studies, feminist jurisprudence, and postcolonial theory. However, some authors like Tommy J. Curry have pointed out that the epistemic convergences with such approaches are emphasized due to the idealist turn in critical race theory. The latter, as Curry explains, is interested in discourse and the theories of white Continental philosophers, over and against the structural and institutional accounts of white supremacy which were at the heart of the realist analysis of racism introduced in Derrick Bell's early works, and articulated through such Black thinkers as W. E. B. Du Bois, Paul Robeson, and Judge Robert L. Carter.Critical race theory draws on the priorities and perspectives of both critical legal studies and conventional civil rights scholarship, while also sharply contesting both of these fields. CRT's theoretical elements are provided by a variety of sources. Angela P. Harris describes CRT as sharing "a commitment to a vision of liberation from racism through right reason" with the civil rights tradition. It deconstructs some premises and arguments of legal theory and simultaneously holds that legally-constructed rights are incredibly important. As described by Derrick Bell, critical race theory in Harris' view is committed to "radical critique of the law and…radical emancipation by the law."
Major themes
and Jean Stefancic have documented the following major themes as characteristic of work in critical race theory:- Critique of liberalism: CRT scholars favor a more aggressive approach to social transformation, as opposed to liberalism's more cautious approach; a race-conscious approach to transformation rejecting liberal embrace of affirmative action, color blindness, role modeling, or the merit principle; and an approach that relies more on political organizing, in contrast to liberalism's reliance on rights-based remedies.
- Storytelling, counter-storytelling, and "naming one's own reality": The use of narrative to illuminate and explore experiences of racial oppression. Bryan Brayboy has emphasized the epistemic importance of storytelling in Indigenous-American communities as superseding that of theory, and has proposed a Tribal Critical Race Theory.
- Revisionist interpretations of American civil rights law and progress: Criticism of civil-rights scholarship and anti-discrimination law, such as Brown v. Board of Education. Derrick Bell, one of CRT's founders, argued that civil rights advances for blacks coincided with the self-interest of white elitists. Likewise, after performing extensive archival research in the U.S. Department of State and Department of Justice, as well as in the correspondence by U.S. ambassadors abroad, Mary L. Dudziak found that the passing of U.S. laws was not because people of color were discriminated against. Rather, such was only to improve the image of the United States to third-world countries that the US needed as allies during the Cold War.
- Applying insights from social science writing on race and racism to legal problems.
- Intersectional theory: The examination of race, sex, class, national origin, and sexual orientation, and how their combination plays out in various settings, e.g., how the needs of a Latina female are different from those of a black male and whose needs are the ones promoted.
- Essentialism: Reducing the experience of a category to the experience of one sub-group. In essence, all oppressed people share the commonality of oppression. However, such oppression varies by gender, class, race, etc., and therefore, the aims and strategies will differ for each of these groups.
- Non-white cultural nationalism and separatism : The exploration of more radical views that argue for separation and reparations as a form of foreign aid.
- Legal institutions, critical pedagogy, and minority lawyers in the bar.
- Structural determinism: Exploration of how "the structure of legal thought or culture influences its content," whereby a particular mode of thought or widely-shared practice determines significant social outcomes, usually occurring without conscious knowledge. As such, theorists posit that our system cannot redress certain kinds of wrongs.
- White privilege: Belief in the notion of a myriad of social advantages, benefits, and courtesies that come with being a member of the dominant race. A clerk not following you around in a store or not having people cross the street at night to avoid you, are two examples of white privilege.
- Microaggression: Belief in the notion that sudden, stunning, or dispiriting transactions have the power to mar the everyday of oppressed individuals. These include small acts of racism consciously or unconsciously perpetrated, whereby an analogy could be that of water dripping on a rock wearing away at it slowly. Microaggressions are based on the assumptions about racial matters that are absorbed from cultural heritage.
- Empathetic fallacy: Believing that one can change a narrative by offering an alternative narrative in hopes that the listener's empathy will quickly and reliably take over. Empathy is not enough to change racism as most people are not exposed to many people different from themselves and people mostly seek out information about their own culture and group.
Whiteness as property
Internalization
Karen Pyke documents the theoretical element of internalized racism or internalized racial oppression, whereby victims of racism begin to believe in the ideology that they are inferior to white people and white culture, who are superior. The internalizing of racism is not due to any weakness, ignorance, inferiority, psychological defect, gullibility, or other shortcomings of the oppressed. Instead, it is how authority and power in all aspects of society contributes to feelings of inequality.Institutional racism
defines institutionalized racism as the structures, policies, practices, and norms resulting in differential access to the goods, services, and opportunities of society by race. Institutionalized racism is normative, sometimes legalized and often manifests as inherited disadvantage. It is structural, having been absorbed into our institutions of custom, practice, and law, so there need not be an identifiable offender. Indeed, institutionalized racism is often evident as inaction in the face of need, manifesting itself both in material conditions and in access to power. With regard to the former, examples include differential access to quality education, sound housing, gainful employment, appropriate medical facilities, and a clean environment.Solid Ground, an organization that works to combat poverty, describes institutionalized racism as the systematic dissemination of opportunities, power, and resources. Institutional racism dates back to slavery, segregation, internment camps, and Indian reservations. Such form of racism can be present in institutions mainly designed to benefit and cater to the lives of white people, such as bank lending policies and different housing contracts, which both deny people of color from living in certain neighborhoods or areas. Many people of color are also racially profiled by law enforcement, and many groups are misrepresented in news and other media. There are also restrictions to certain types of employment, as well as advancements in the workplace, which are strictly based on one's race.
Applications
Scholars in critical race theory have focused, with some particularity, on the issues of hate crime and hate speech. In response to the opinion of the U.S. Supreme Court in the hate speech case of R.A.V. v. City of St. Paul, in which the Court struck down an anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence argued that the Court had paid insufficient attention to the history of racist speech and the actual injury produced by such speech.Critical race theorists have also paid particular attention to the issue of affirmative action, whereby scholars have argued in favor of such on the argument that so-called merit standards for hiring and educational admissions are not race-neutral for a variety of reasons, and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.
Critique and controversy
Some legal scholars have criticized CRT on a number of grounds, such as CRT scholars' reliance on narrative and storytelling, or CRT's critique of objectivity. Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals has "label critical race theorists and postmodernists the 'lunatic core' of 'radical legal egalitarianism.'" He wrote:Judge Alex Kozinski of the Ninth Circuit Court of Appeals wrote that critical race theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable:
Daniel Farber and Suzanna Sherry have argued that critical race theory, along with critical feminism and critical legal studies, has anti-Semitic and anti-Asian implications, has worked to undermine notions of democratic community, and has impeded dialogue.
Henry Louis Gates Jr. has written a critical evaluation of CRT. Gates emphasizes how campus speech codes and anti-hate speech laws have been applied to anti-white speech, contrary to the intentions of CRT theorists: "During the year in which Michigan's speech code was enforced, more than twenty blacks were charged – by whites – with racist speech. As Trossen notes, not a single instance of white racist speech was punished."
Jeffrey J. Pyle wrote in the Boston College Law Review:
Peter Wood considers CRT a "grievance ideology" and an "absurdity". He sees the central tenet of "white racism in the American legal system" to be shown false because of items such as the 14th Amendment, the Voting Rights Acts, and Brown v. Board of Education. Critics including George Will saw resonances between critical race theory's use of storytelling and insistence that race poses challenges to objective judgments in the US and the acquittal of O. J. Simpson.
Controversies
Critical race theory has stirred controversy since the 1980s over such issues as its:- deviation from the ideal of color blindness;
- promotion of the use of narrative in legal studies;
- advocacy of "legal instrumentalism" as opposed to ideal-driven uses of the law;
- analysis of the U.S. Constitution and existing law as constructed according to and perpetuating racial power; and
- encouragement of legal scholars to be partial on the side of ending racial subordination.
Subfields
Within critical race theory, various sub-groupings have emerged to focus on issues that fall outside the black-white paradigm of race relations as well as issues that relate to the intersection of race with issues of gender, sexuality, class and other social structures. For example, critical race feminism, Latino critical race studies, Asian American critical race studies, South Asian American critical race studies, and American Indian critical race studies. CRT methodology and analytical framework have also been applied to the study of white immigrant groups. CRT has spurred some scholars to call for a second wave of whiteness studies, which is now a small offshoot known as Second Wave Whiteness.Another offshoot field is that of disability critical race studies, which combines Disability Studies and Critical Race Theory to focus on the intersection of disability and race.
Critical race theory has also begun to spawn research that looks at understandings of race outside the United States.
Latino critical race theory
The framework of Latino critical race theory suggests that the social construction of race is central to how people of color are constrained in society. Race scholars developed the LatCRT as a critical response to the "problem of the color line" first explained by W. E. B. Du Bois. While CRT focuses on the Black–White paradigm, LatCRT has moved to consider other racial groups, mainly Chicana/Chicanos, as well as Latinos/as, Asians, Native Americans/First Nations, and women of color. In Critical Race Counterstories along the Chicana/Chicano Educational Pipeline, Tara J. Yosso discusses how the constraint of people of color can be defined. Looking at the differences between Chicana/o students, the tenets that separate such individuals are:- the intercentricity of race and racism;
- the challenge of dominant ideology;
- the commitment to social justice;
- the centrality of experience knowledge; and
- the interdisciplinary perspective.
First, CRT proposes that white supremacy and racial power are maintained over time, a process that the law plays a central role in. Different racial groups lack the voice to speak in this civil society, and, as such, CRT has introduced a new critical form of expressions, called the voice of color. The voice of color is narratives and storytelling monologues used as devices for conveying personal racial experiences. These are also used to counter metanarratives that continue to maintain racial inequality. Therefore, the experiences of the oppressed are important aspects for developing a LatCRT analytical approach, and it has not been since the rise of slavery that an institution has so fundamentally shaped the life opportunities of those who bear the label of criminal.
Secondly, LatCRT work has investigated the possibility of transforming the relationship between law enforcement and racial power, as well as pursuing a project of achieving racial emancipation and anti-subordination more broadly. CRT finds the experiential knowledge of people of color and draws explicitly from these lived experiences as data, presenting research findings through storytelling, chronicles, scenarios, narratives, and parables.