Critical Race Theory
CRITICAL RACE THEORY.
One of a family of related progressive movements in the law—others include critical legal studies, Latino critical legal studies ("Lat/Crit"), and feminist legal theory—critical race theory sprang up in the late l970s in response to a widespread perception that the powerful civil rights coalition of the 1960s and early 1970s had stalled. Conservative administrations and an American public that seemed increasingly weary of hearing about race required new strategies and theories to deal with subtle, institutional, or color-blind forms of racism and a judiciary that no longer seemed eager to champion civil rights.
Derrick Bell, an African-American professor of law at Harvard Law School (later at New York University) and Alan Freeman, a white scholar teaching at SUNY-Buffalo Law School, laid the foundations of the movement that came to be called critical race theory and that would go on to transform our understanding of the relationship among race, racism, and official power. For his part, Bell contributed groundbreaking analyses of conflict of interest in civil rights litigation and of the role of white elite self-interest in explaining the twists and turns of blacks' racial fortunes. In an impressive article in Yale Law Journal, Bell pointed out that lawyers for elite civil rights organizations like the NAACP (National Association for the Advancement of Colored People), where he himself worked before entering law teaching, often were eager to pursue one agenda—law reform and innovation—while the client community wanted something else—say, better schools. The NAACP Legal Defense Fund, for example, relentlessly and courageously pursued school desegregation, while black parents often wanted something different—better funding for black schools.
If the first essay produced consternation and soul-searching among his colleagues in the civil rights movement, a second piece, on the role of interest convergence in determining the course of racial reform and retrenchment, raised eyebrows even higher. In "Brown v. Board of Education and the Interest Convergence Dilemma," Bell posited that the breathtaking advances of the early civil rights years came about not so much because of moral breakthroughs by the American public or liberal judges. Rather, they were needed in order to burnish America's tarnished image in the eyes of the rest of the world and also to avert the possibility of racial unrest at home. At the time, the United States had just concluded a world war of mammoth proportions and was in the early stages of a Cold War against the forces of godless, soulless communism. In this campaign for the loyalties of the uncommitted Third World (much of which was black, brown, or Asian), it ill served this nation for the world to see front page stories and photographs of lynchings, the Emmett Till murder, and southern sheriffs turning vicious police dogs loose on peaceful civil rights leaders such as Martin Luther King Jr.
At the same time, wartime service in the U.S. military had exposed black and brown servicemen and -women to environments comparatively free of racism, in which diligent service brought rewards, promotions, and even battlefield commissions. These black and brown soldiers, having fought and exposed their lives in defense of American democracy and freedom, were unlikely to return to the former regime of menial jobs and servile relations with white society. Unrest loomed.
This convergence of black and white self-interest—rather than altruism or advancing morality—brought about Brown v. Board of Education (1954), the l964 Civil Rights Act, and other reforms of that era. And when black advances no longer served the interests of elite whites, they were quietly withdrawn or limited by narrow judicial interpretation, administrative foot-dragging, or delay. Although his skeptical hypothesis was met at first with cries of outrage, Bell subsequently applied his interest-convergence hypothesis to explain the full sweep of black civil rights history, showing how the material interests of elite whites explain practically every major advance or retreat. And Mary Dudziak, a white professor teaching at the University of Southern California Law Center, verified Bell's hypothesis by examining a host of documents, memos, and archival material related to Brown v. Board of Education.
Around the same time Bell was writing, Alan Freeman was carrying out an extraordinary reinterpretation of the role of the U.S. Supreme Court in guiding the course of civil rights progress. Freeman showed how our usual interpretation of the role of the liberal Warren court was both right and wrong. The Court did indeed champion civil rights causes. But in doing so, it also served as a powerful legitimating tool by confining change to manageable dimensions and denying relief for any but the most clear-cut violation.
An Organization Forms
Others (including Richard Delgado, one of the authors of this essay) soon joined Bell and Freeman, and in the summer of 1989 about thirty law scholars of color from around the United States met at a convent outside Madison, Wisconsin, to forge a new movement in the law. Settling on a name (critical race theory) and a general program, the group resolved to coordinate their scholarship and hold future meetings aimed at developing a new, radical approach to race, racism, and American law. Since then, the group has held a series of public conferences and periodic smaller workshops aimed at the development of particular themes. The group's scholarship grew rapidly to include a few dozen books and hundreds of law-review articles and essays. Many law schools around the country include critical race theorists among their ranks; perhaps two-thirds of all law schools offer one or more courses on it or a related subject.
The movement's ideas also spread to other fields. Educators use its approaches and theories to help understand hierarchy in schools, tracking, school discipline, and battles over the Western canon. Political scientists are intrigued by its studies of the role of courts in law reform; sociologists, by its analyses of racial power and authority; American Studies scholars and rhetoricians, by its use of storytelling, counterstorytelling, and revisionist history. What are some of the movement's dominant ideas? Critical race theory is a very loose collection of scholars, not all of whom would agree on this or any other platform or set of defining tenets. But most "race-crits" would acknowledge some of the following as the movement's defining themes:
Interest convergence and material determinism.
Just as the movement began with Derrick Bell's impressive analysis of the role of white institutional self-interest and its relation to racial reform, critical race theorists have continued to explore this dimension of American society. Scholars such as Lani Guinier examine how voting behavior and laws affect the quality of the representation that the minority community receives in national and state legislatures. Guinier and others study the idea of merit, standardized testing, and occupational qualifications in order to see how seemingly neutral measuring instruments and criteria incorporate bias. Writers such as Spencer Overton examine the role of property, wealth, and ownership in inhibiting black advances. A host of scholars examines affirmative action and job-hiring patterns in higher education.
Racism as ordinary and normal.
Most Americans believe that their society is fair and just, and the legal system frames antidiscrimination law and doctrine with this presupposition in mind. Most critical race theorists believe the opposite is true, however; racism for them is ordinary, normal, and deeply embedded in everyday life and institutions. From songs, rhymes, and nursery stories such as Snow White, to movie roles and stereotypes, job and school criteria, and old-boy informal networks, favoritism for white, European ways exerts a subtle, ever-present force. If racism and race-themed ideas and preferences are everywhere, this makes them invisible and difficult to confront. They seem ordinary and natural; the person seeking to challenge them strikes others as impossible, nitpicky, or lacking in a sense of proportion. Litigants suing for discrimination confront the same obstacle. Unless what the defendant did was outrageous, intentional, and outside the pale, courts are unlikely to award relief.
Critique of color blindness.
Currently, one of society's—and the legal system's—dominant approaches to race is color blindness. This perspective insists that race does not matter. The law should not take account of race either for the purpose of helping or handicapping any group. By the same token, advocates of color blindness assert that in ordinary life one should behave the same way—simply refusing to take note of the race of people with whom one comes into contact.
Some critical race theorists have mounted a powerful and sustained attack on the idea of color blindness, pointing out, for example, that to disregard another person's race, one first has to notice it, and that many color-blind institutions—such as an alumni preference at private colleges—strengthen white privilege and disadvantage blacks and other minorities.
The social construction of race.
Most race-crits hold that race is not real and objective but that ideas of race nevertheless exert great social power. Supported by scientific findings that individuals of different races share a huge majority of their genes (perhaps as much as 99.9 percent) and the scientific community's agreement that the few genes that do account for minor differences such as hair texture and skin color cannot possibly influence distinctively human traits such as intelligence, personality, or propensity for moral or immoral behavior, critical race theorists examine how we nevertheless come to believe in the reality of race. If race is a social construction—something we choose to believe in the face of scientific evidence to the contrary—what are the mechanisms of that social construction and what keeps them in place? Social constructionists examine how scripts, narratives, stories, and habits enable society to continue to believe that something important distinguishes blacks and whites, for example, and hold to those beliefs even in the face of evidence that people everywhere are pretty much alike (some good, some bad). They also examine the role of law in maintaining racial lines and classifications through such measures as immigration categories, rules forbidding intermarriage, and state statutes defining blackness, such as the "one-drop rule," according to which any individual with a detectable trace of black blood is black.
A recently developed theme within critical race theory discourse is differential racialization. This theory holds that the various racial groups in the United States—blacks, Latinos, Asian-Americans, and Native Americans, for example—have been racialized in different ways in response to different needs of the majority group. Moreover, the laws and legal structures society devises for each group—such as English-only laws for Latinos, alien land laws for Asians, and Jim Crow laws for blacks—operate differently in the case of the various groups. The groups feature different histories and struggles. They had to contend with different sets of discriminatory laws and practices. With Indians, for example, society wanted their land; with blacks, labor; with Latinos, first land, then labor; and so on. Social stereotypes of the various groups changed accordingly over time to facilitate society's obtaining what it wanted from the group in question. For example, during slavery, when southern whites had matters well in hand, the dominant narratives, songs, and stories about blacks were reassuring: Blacks were happy with their lives and pleased to serve whites. Later, when blacks received their freedom and were perceived as a threat, social images of them changed. Writers, cartoonists, and filmmakers depicted blacks as frightening, larger-than-life figures with (in the case of men, at least) designs on white women. These figures, of course, justified cruel repression. They would not have served well during the slave period because they would have suggested that blacks were unhappy with their lot.
The black/white binary of race.
Related to the above is the notion that American concepts—and laws—related to race incorporate a black/white binary paradigm, in which two, and only two, races define the study, and system, of race. Those two races are, of course, the white and the black. Other groups, such as Latinos, Asian-Americans, Indians, and Filipinos enter into the equation only insofar as their treatment and experiences can be analogized to those of African-Americans. Sometimes the analogy holds. If antidiscrimination law would afford redress for an African-American worker whose supervisor calls him a "lazy n——" and assigns him to the least desirable tasks, it would also provide relief for an Asian worker called a "damn chink" and sent off to do unpleasant work.
But suppose the basis for discrimination is that a Latino or Asian worker speaks with an accent, or because the employer fears, wrongly, that such a worker may be an undocumented alien. Neither accent nor national-origin discrimination affects most blacks; therefore, remedial law coined with them in mind may afford no redress for these other kinds of discrimination. By the same token, Asians may be discriminated against because of a radically different set of stereotypes—the super-achiever or humorless drone who steals jobs from more well-balanced American workers, while Latinos may suffer because of the opposite stereotype—the happy-go-lucky lover of song, dance, and women. Again, none of these stereotypes affects blacks generally, with the result that courts and other decision makers are apt to be unschooled in the need to be on guard against them.
Intersectionality and antiessentialism.
A further critical theme that, like differential racialization and the black/white binary, has to do with categories and power is intersectionality and antiessentialism. Opposite sides of the same coin, these two themes draw attention to the evils of overgeneralization. Both have to do with identity. Intersectionality names a phenomenon in which individuals are often found to exhibit identities that are complex. A Latino may also be black, or gay. An African-American may be female and a single parent. An Asian-American may have a parent who is Filipino or a grandparent who is Latino, and so on.
Complex identities may turn out to have legal consequences. For example, imagine an African-American woman worker who suffers discrimination on the job site because of her black womanhood. Her supervisor may dislike black women, believing them lazy or haughty. The supervisor may harbor no such dislike for black men or white women, and may treat them fairly. His discrimination runs only to black women.
Suppose that our hypothetical worker sues for workplace discrimination. How would she frame her case? She could invoke one existing body of case and statutory law that redresses discrimination on the grounds of sex. She is, after all, a woman, and her boss does discriminate against her because she is a woman—a black woman. Alternatively, she could file suit on the grounds of racial discrimination. Her supervisor treats her badly, in part, because she is an African-American. Regardless of the avenue she chooses, however, her suit will confront serious obstacles. Her boss can maintain, truthfully, that he does not discriminate against all women. In particular, he treats white women well, promoting them when they deserve it and otherwise treating them fairly.
He can also prove that he does not discriminate against African-Americans across the board. In particular, he likes black men and treats them well at work. The black woman's claim, then, could fail because her discrimination is intersectional—aimed at her because of her status as a black woman, someone with an intersectional identity. All individuals with complex identities run the risk that a system of power and authority that hinges on prefabricated categories, none of which perfectly fit the individual's situation, fails to do them justice.
Antiessentialism points to the mirror image problem. An organization, such as a woman's group, whose dominant membership is, let us say, white, may give short shrift to the needs and priorities of nonwhite members because it thinks in terms of an "essential" woman, who is, of course, white. The organization then devises strategies to advance the objectives of this member, whose aims and needs are considered to be representative of the group. The needs of nonstandard members—say, white lesbians, or black single mothers—are deemed of secondary importance. The group will deal with them as soon as the needs of women, as women, are dealt with. And this paradigmatic woman is apt to turn out to be white and middle class.
Legal storytelling and narrative analysis.
Out of the concern that conventional legal discourse—and perhaps discourse of any kind—will fail to do justice to the needs, experiences, and histories of minorities, critical race theorists have been experimenting with new modes of presenting their ideas. These new vehicles include legal storytelling and narrative analysis. Legal storytelling received a large boost when Derrick Bell, at the height of his career, received a prestigious invitation to write the foreword to Harvard Law Review 's 1985 Supreme Court issue, devoted to the analysis of recent opinions. Disdaining the usual heavily footnoted, ponderous prose in which most of the forewords are written, Bell instead published a series of conversations—"The Civil Rights Chronicles"—with an imaginary superheroine lawyer named Geneva Crenshaw. His alter ego is young and brash; his own voice is tempered and moderate. The two discuss the current racial scene and developments in the law. Bell tries to defend the system and its steady, incremental progress. Geneva destroys every illusion with devastating wit and analysis.
Others followed Bell's lead, using fable, myth, and close observation to unmask items of the liberal faith, such as that blacks are making constant progress, color blindness is capable of redressing most racial ills, and most social institutions are prepared to grant minorities full access so long as they meet the institution's standards. Storytelling aims at increasing empathy and allowing the reader a glimpse into what life is like for the author of color. Counterstorytelling aims to debunk the many myths and generalizations that white people believe and that enable them to be comfortable in a system in which they enjoy a disproportionate share of the benefits and privileges. Both types of writing aim at a broad, multiracial audience. Storytellers such as Patricia Williams, Robert Williams, and Richard Delgado have won wide audiences and national acclaim for their work.
Attorneys and legal scholars have also applied the lessons of legal storytelling and narrative analysis to judicial proceedings and the dynamics of the courtroom. A trial is, in some respects, a battle of narratives. And the relationship between an attorney and a client may be seen as an effort to impose a narrative, or understanding, on their mutual journey. Writers such as Lucie White and Anthony Alfieri show how attention to the narrative side of lawyering allows lawyers to understand their function and provide a better brand of justice.
Along with the above-mentioned emphasis on language, discourse, and narrative comes a focus on an especially problematic form of expression—hate speech. Some of the earliest critical race theory work, which continues today, examines the law's treatment of racial epithets, slurs, and name-calling. Speech is a highly protected value in our legal system, yet vicious put-downs based on a person's unchangeable characteristics endanger another set of values, including health, psychological well-being, and equality. Critical theorists such as Mari Matsuda, Charles Lawrence, and Richard Delgado analyze this conflict between free expression and equal dignity in an effort to provide greater protection for the latter value. Some have participated in the drafting of campus hate-speech codes aimed at assuring an atmosphere conducive to equal participation. They also address issues such as the Confederate flag, teams that sport demeaning Indian logos, and public monuments that memorialize slavery and a segregated past.
Critical race theory has spawned a number of successor movements that, while continuing to maintain relations with the original movement, pursue courses and directions of their own. Concerned about an unduly Afrocentric emphasis in critical race theory and inattention to groups falling outside the black/white binary of race, Latino scholars in the mid-l990s began caucusing separately during critical race theory meetings, then broke off to form their own multiracial organization, the conference on Latino/Critical studies. The group focuses on a number of issues—such as immigration law and policy, language and accent discrimination, and discrimination based on conquest or territorial status—to which the parent organization gives short shrift.
In similar fashion, a national organization of radical Asian-American scholars meets separately to develop a body of knowledge related specifically to the needs and problems of that population, including many of the above-named issues and, in addition, such issues as Orientalism and the notion of Asians as a model minority. For their part, gay and lesbians of color have been developing a sophisticated set of ideas and a body of scholarship devoted to sexual minorities. Critical race feminism examines issues pertaining to women within the various communities of color, including sweatshop labor, sexual abuse in minority communities, and global human rights, including resistance to genital mutilation and other practices directed against women.
A final spin-off movement is critical white studies, in which scholars apply the techniques and approaches of critical race theory—including social constructionism, historical revisionism, and close attention to myth and narrative—to whites. Scholars such as Ian Haney-López examine Supreme Court cases dealing with the legal definition of whiteness and the requirement—which endured until recently—that an applicant seeking to naturalize (acquire American citizenship) establish that he or she is white. Others examine the abovementioned "one-drop" rule and laws governing interracial marriage and adoption in an effort to learn how white preference figures in. Still others examine seemingly race-neutral laws, such as the income tax code, in search for provisions that favor whites and tacitly enact a system of white privilege, while a final group examines white-collar crime and leniency afforded sympathetic white defendants who have erred over ones who are less sympathetic, nonwhite, but who committed the same offense.
As the reader might imagine, audacious movements championing sweeping insights into American society and employing nontraditional forms of scholarship have come in for their share of criticism. At first, criticism was relatively muted. Book reviewers and tenure committees welcomed the new scholarship and gave it a warm reception. However, critics have taken the movement to task for making undocumented assertions and substituting personal experience and anecdote for provable fact. Other critics have focused on the movement's critique of merit and other Eurocentric mainstays. With merit, for example, Daniel Farber and Suzanna Sherry ask, what will replace it as a basis for distributing jobs, places in a law school class, and other scarce social goods? And, what are we to make of the current distribution of wealth and influence? If it was improperly gained, as the critics suggest, through a series of rigged competitions, what of minority groups such as Asians and Jews who have done well under the current regime? Perhaps the critique of merit is implicitly anti-Semitic.
Critics from the left level a different type of criticism. Interest convergence, a Supreme Court that subtly discourages racial reform even in the act of advancing it, and other bleak scenarios are too depressing to serve as rallying cries for liberal reformers. Moreover, they are poor tools for students and young attorneys, who require more action-oriented, inspiring fare. Derrick Bell and his colleagues reply that happy myths about progress and faith in the law that, in the end, turn out to be untrue discourage the activist even more and lead to disillusion and dropout. The solution for the reformer is to learn to derive meaning from the act of struggle itself—whether or not it brings immediate victory.
Other mainstream critics take the movement to task for departing from a conception of law as a system of exact, predictable, formal rules and teaching, instead, that it is full of indeterminacy and veiled, clashing interests. Some of these critics charge that critical race theory's focus on narrative and subjectivity, instead of objectivity and uniform rules, is dangerous. Jeffrey Rosen, legal affairs editor for the New Republic, for example, rebuked several critical race authors for providing the basis for the O. J. Simpson acquittal. When Simpson's lawyer, Johnny Cochrane, successfully appealed to the jury to imagine a different story from the one the state prosecutor advanced—a story in which the Simpson prosecution was infected at every stage with racial prejudice—Cochrane was simply using applied critical race theory. This strategy—"playing the race card," in Rosen's view—amounted to a dangerous departure from what should have been the main objective of a trial: finding the truth.
As the above description suggests, critical race theorists address a broad span of issues having to do with race, and from a variety of perspectives. Most pay close attention to context and historical situation, valuing the individual over the universal in social and legal analysis. They also credit multiplicity, for example of narratives and identities, over broad generalization. They emphasize how legal rules and regimes look from the perspective of the disempowered and outsider groups—in Matsuda's memorable phrase, "looking to the bottom." And a significant faction places primary importance on material factors—labor demand, immigration needs, conquest, international tensions—in understanding the ebb and flow of U.S. racial politics. Critical of both liberal incrementalism and conservative color-blind philosophies, critical race theorists carve out new ground that places central importance on power, economics, narrative, and social construction in coming to grips with America's social problems.
Raised in Pittsburgh, Pennsylvania, the son of working-class parents, Derrick Bell graduated from Duquesne University and the University of Pittsburgh law school, where he was the first African-American to gain membership to its prestigious law review. After graduating from law school, he worked for a number of law reform agencies, including the NAACP, then entered teaching at Harvard Law School in 1969, the first of his race to teach in a tenure-track capacity there. At the end of 1980, he left Harvard to assume the position of dean at University of Oregon Law School, the first black to lead a major, white-dominated law school in the United States. After leaving Oregon in protest over the faculty's refusal to hire a well-qualified Asian-American female professor, he returned to Harvard Law School, where he mentored students and young scholars across the country, helped found the critical race theory movement, and constantly pressed for liberalization of racial policies at his school. His persistent, heroic, sometimes quixotic struggles are recounted in two books and countless newspaper stories. An inspiration to two generations of lawyers and scholars, Bell taught as a permanent visiting professor at New York University law school in the early 2000s.
Related Legal Movements
One of a group of progressive movements in the law, critical race theory bears close relations with a forerunner movement—critical legal studies—that flourished in the 1960s and 1970s and was still alive in the early 2000s. Building on the insights of the early-twentieth-century legal realists, critical legal studies scholars attacked the ideas of legal determinacy—that every legal problem has exactly one correct solution—and autonomy, the notion that law exists in a realm by itself. Instead, the critical legal studies scholars urged, law bears a close relation to economics, politics, social science, and even art and aesthetics. Critical race theorists build on all these ideas, as well as on the Continental school of philosophy from which many critical legal studies scholars draw inspiration.
Critical race theory also builds on some of the key ideas of radical feminism, including hierarchy, patriarchy, and the notion that everyday terms, categories, and roles advance implicit agendas and encode power relations in a way that benefits those in charge. The movement also learned from revisionist historians, such as Charles Beard and Patricia Limerick, who examined history from hitherto unexplored perspectives, such as those of women, workers, and members of outsider groups. Finally, critical race theory scholars such as Derrick Bell and Richard Delgado draw from neo-Marxist theory in exploring how race relations in the United States reflect economic struggles, shifting labor needs, and the clash of interest groups.
The next wave of critical race theorists will likely consider the relationship between race and class, the role of minorities in a two-party political system, and the implications of globalization for domestic minorities. The United States' population of color is rapidly growing and was expected to exceed 50 percent sometime in the mid-twenty-first century. Latinos were expected to surpass blacks as the nation's largest group of color. The implications for race relations and civil rights of all these developments are sure to be on critical race theory's agenda well into the future.
The movement is sure to remain controversial—but, of course, many social movements were in their early years. Yet in some respects, it has become the new orthodoxy. Some judges now apply its insights in understanding the racial dynamics of particular cases. Mainstream presses publish its authors; undergraduates study its teachings on hate speech, narrative, and race coding. Two critical race theorists were nominated for high positions within the Clinton administration, but proved too controversial to be confirmed. As the United States struggles to come to terms with a multiracial world and a domestic population that is increasingly black, brown, and Asian, the insights of these progressive, divergent thinkers are apt to become more and more relevant.
See also Identity, Multiple ; Identity: Personal and Social Identity ; Race and Racism .
Bell, Derrick A. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987. Expansion of the "Civil Rights Chronicles."
——. "Brown v. Board of Education and the Interest Convergence Dilemma." Harvard Law Review 93 (1980): 518ff. Classic statement of materialist interpretation of race.
——. "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation." Yale Law Journal 85 (1976): 470ff. Convincing demonstration of tensions inherent in civil rights advocacy.
Calmore, John O. "Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World." Southern California Law Review 65 (1992): 2129ff. Classic work on the minority condition.
Crenshaw, Kimberlé, et al., eds. Critical Race Theory: The Key Writings That Formed the Movement. New York: New Press, 1995.
——. "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law." Harvard Law Review 101 (1988): 1331ff. Early statement of antiliberal critique.
Delgado, Richard. The Rodrigo Chronicles: Conversations about America and Race. New York: New York University Press, 1995. Renowned example of legal storytelling.
Delgado, Richard, and Jean Stefancic, eds. Critical Race Theory: The Cutting Edge. 2nd ed. Philadelphia: Temple University Press, 2000. Widely used reader on critical race theory.
——, eds. Critical White Studies: Looking behind the Mirror. Philadelphia: Temple University Press, 1997. Broad collection of writings about whiteness.
——, eds. The Latino/a Condition: A Critical Reader. New York: New York University Press, 1998. Collection of Lat/Crit writings.
Dudziak, Mary L. Cold War Civil Rights: Race and the Image of American Democracy. Princeton, N.J.: Princeton University Press, 2000. Extended treatment of forces leading to Brown v. Board of Education.
Farber, Daniel, and Suzanna Sherry. Beyond All Reason: The Radical Assault on Truth in American Law. New York: Oxford University Press, 1997. Searching criticism of the critical race theory movement.
Freeman, Alan D. "Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine." Minnesota Law Review 62 (1978): 1049ff. Illuminating examination of role of Supreme Court in achieving social justice.
Guinier, Lani. The Tyranny of the Majority: Fundamental Fairness in Representative Democracy. New York: Free Press, 1994. Innovative study of voting mechanisms.
Haney-López, Ian F. White by Law: The Legal Construction of Race. New York: New York University Press, 1996. Groundbreaking study of role of law in drawing boundaries of the white race.
Harris, Angela P. "Race and Essentialism in Feminist Legal Theory." Stanford Law Review 42 (1990): 581ff. Powerful treatment of white bias in mainstream feminism.
Lawrence, Charles R., III. "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism." Stanford Law Review 39 (1987): 317ff. Demonstrates the prevalence of unconscious racism and proposes ways the law may take account of it.
Matsuda, Mari J. "Public Response to Racist Speech: Considering the Victim's Story." Michigan Law Review 87 (1989): 2320ff. Classic exposition of critical methodology.
Perea, Juan F. "Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English." Minnesota Law Review 77 (1992): 269ff. Famed treatment of language rights.
Ross, Thomas. "Innocence and Affirmative Action." Vanderbilt Law Review 43 (1990): 297ff. Study of the role of the power of white innocence.
"Symposium: Critical Race Theory." California Law Review 82 (1994): 741ff. First and defining symposium on critical race theory.
Williams, Patricia J. The Alchemy of Race and Rights. Cambridge, Mass.: Harvard University Press, 1991. Illustrious example of legal storytelling.
Wing, Adrien K., ed. Critical Race Feminism: A Reader. New York: New York University Press, 2003. Classic collection of critical race feminist writings.
"Critical Race Theory." New Dictionary of the History of Ideas. . Encyclopedia.com. (May 19, 2018). http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/critical-race-theory
"Critical Race Theory." New Dictionary of the History of Ideas. . Retrieved May 19, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/critical-race-theory
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Critical Race Theory
Critical Race Theory
Critical race theory is an intellectual and political movement within legal studies to transform the legal academy in terms of its analysis of racial inequalities and use the law to transform society in markedly antiracist directions. The intellectual breadth of critical race theory presages a much larger contribution to the social sciences aimed at understanding race relations in more interdisciplinary manners. Arising from the critical legal studies movement, critical race theory is identified in terms of two separate origins stories. Kimberlé Crenshaw (Crenshaw et al. 1995, 2002) identifies its origins in the work of Derrick Bell and the Harvard Law School. Sumi Cho and Robert Westley (2002) identify the development of critical race theory on the West Coast and the law school of the University of California Berkeley, Boalt Hall, and the free speech and Third World student movements that gripped college campuses in the 1960s.
Crenshaw, Richard Delgado, and Angela Harris identify the official beginning of critical race theory (CRT) in 1989, with the first workshop on the topic held in Madison, Wisconsin. Many of the scholars associated with critical race theory attended this and subsequent workshops. The impetus for a gathering of law faculty and students of color was their shared frustration over the colorblind veneer of critical legal studies.
Critical legal studies and critical race theory share a commitment to understanding the role that law plays in shaping social relations. Challenging the centrist model of jurisprudence that assumes law to be a self-contained, objective, rational entity designed to make maximally efficient decisions under the rule of law, critical legal studies scholars argue that law often structures social inequalities. Law operates like a bureaucratic iron cage that limits equal access and shapes economic and political hierarchies in society.
Focusing specifically on racial inequalities, critical race theory scholars share a commitment to viewing the law as exacerbating inequalities while maximizing its transformative potential. The foremost scholar in critical race theory is Derrick Bell, whose legal storytelling method has shifted scholarly boundaries between fiction and nonfiction, autobiography and legal analysis, legal and social science scholarship, and law and society. Bell’s And We Are Not Saved (1987) and Faces at the Bottom of the Well (1992) feature the fictional character Geneva Crenshaw, a civil rights lawyer who enters into a dialogue with Bell the law professor on the role that race continues to play in a post-civil rights era. Similar dialogues have been composed by Richard Delgado and his fictional student Rodrigo in The Rodrigo Chronicles (1995) and The Coming Race War? (1996).
For Crenshaw, the origins of the 1989 critical race theory workshop rest in the Harvard Law School and Bell’s decision to leave Harvard over the law school’s unwillingness to tenure a woman of color. The Alternative Course was a course on civil rights, race and law designed to continue Bell’s intellectual legacy and push to diversify a homogenously white, male faculty. Harvard law students of color fought hard through the 1980s to study race from a critical perspective and diversify the law school’s students, faculty, and curriculum.
Other legal scholars, particularly Cho and Westley, identify the origins of critical race theory in the Free Speech and Third World consciousness-raising student movements of the 1960s. Particularly on the West Coast, university students from a plurality of minority communities came together to challenge the white, male patterns of privilege and reproduction. Harvard was not the only law school where students challenged the patterns of racial exclusion. The Boalt Coalition for a Diversified Faculty orchestrated the Nationwide Law Student Strike on April 6, 1989, to publicize the dearth of faculty of color at the nation’s law schools (30 percent had never hired a faculty member of color, and 34 percent had made only a token or single hire as of 1981).
Today, many of the most influential law professors identify with critical race theory or its progenies. Derrick Bell, Sumi Cho, Kimberlé Crenshaw, Jerome Culp, Richard Delgado, Neil Gotanda, Lani Guinier, Ian Haney Lopez, Angela Harris, Kevin Johnson, Charles Lawrence, Mari Matsuda, Margaret Montoya, Michael Olivas, Robert Westley, Alfreda Robinson, Dorothy Roberts, Mary Romero, Jean Stefancic, Francisco Valdes, Patricia Williams, Robert Williams, and Eric Yamamoto are widely recognized scholars associated with critical race theory. This list is clearly not exhaustive but simply illustrative of a few of the many names associated with the intellectual movement.
Critical race theory finds its most influential, current expression in the New York University Press’s Critical America Series, edited by Delgado and Stefancic. Critical race theory is also cultivating offshoots that are blossoming into their own research programs. Current offshoots include: LatCrit, addressing Latinos, law, and identity; OutCrit, addressing the legal predicaments of lesbian, gay, bisexual, and transgender communities; critical race feminism, which takes an intersectional approach to law, race, and gender; NatCrit, addressing Native Americans and law; ClassCrit, addressing social class and law; critical white studies, challenging white privileges inscribed in law; and mixed-race crit, addressing law from biracial and multiracial identities.
The topics of inquiry in critical race theory vary but include hate speech, hate crimes, reparations, diversity in higher education and the legal academy, racial categorizations and law, identities theorized in relation to anti-essentialisms and multi-positionalities, corporate social responsibility, immigration enforcement, racial profiling, civil rights legislation, race-based backlash, and retrenchment. Many CRT scholars were instrumental in the successful reparations claim on the part of Japanese American internees. Reparations for African Americans (based on slavery and Jim Crow institutions), Native Americans (artifacts, land, and treaties), Mexican Americans (for mass repatriation during the Great Depression and the temporary worker or Bracero Program from 1942 to 1964), and Jewish Holocaust survivors represent critical race theory movements where law and politics intersect to advocate for social change.
The contributions to the social sciences include new approaches to narrative inquiry, the legal storytelling tradition, identities, and politics. The narrative storytelling tradition and its validation in the academy serve as major contributions not only to legal studies but to most fields of the humanities and social sciences. The fundamental epistemological claims of whose knowledge is deemed valid, how we come to “know truth,” and the privileged position of outsiders in understanding power relations are revolutionary contributions to an alternative philosophy of science that informs the social sciences.
Finally, fields such as education and interdisciplinary studies in law and society have incorporated critical race theory into their analytical frameworks. University of Wisconsin educators Gloria Ladson-Billings and William Tate’s 1995 call for the application of critical race theory to the fundamental issues of race in education has been answered by scholars such as Sofia Villenas, Tara Yosso, and Daniel Solorzano.
SEE ALSO Bracero Program; Critical Theory; Holocaust, The; Jim Crow; Narratives; Politics; Race; Racism; Slavery; Social Constructs; Social Science; Storytelling; Whiteness
Crenshaw, Kimberlé, Neil Gotanda, Gary Peller, and Kendall Thomas, eds. 1995. Critical Race Theory: The Key Writings that Formed the Movement. New York: New Press.
Delgado, Richard, and Jean Stefancic. 2001. Critical Race Theory: An Introduction. New York: New York University Press.
Hernández-Truyol, Berta, Angela Harris, and Francisco Valdes. 2005. LatCrit X Afterword, Beyond the First Decade: A Forward-Looking History of LatCrit Theory, Community, and Praxis. LatCrit.Org. http://www.arts.cornell.edu/latcrit/welcome/history/latcritxafterword_v_21.pdf.
Ladson-Billings, Gloria, and William F. Tate, IV. 1995. Toward a Critical Race Theory of Education. Teachers College Record 97 (1): 47–68.
Valdes, Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris, eds. 2002. Crossroads, Directions, and a New Critical Race Theory. Philadelphia: Temple University Press.
Ronald L. Mize Jr.
"Critical Race Theory." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (May 19, 2018). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/critical-race-theory
"Critical Race Theory." International Encyclopedia of the Social Sciences. . Retrieved May 19, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/critical-race-theory