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Critical Race Theory

CRITICAL RACE THEORY.

One of a family of related progressive movements in the lawothers include critical legal studies, Latino critical legal studies ("Lat/Crit"), and feminist legal theorycritical 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 agendalaw reform and innovationwhile the client community wanted something elsesay, better schools. The NAACP Legal Defense Fund, for example, relentlessly and courageously pursued school desegregation, while black parents often wanted something differentbetter 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-interestrather than altruism or advancing moralitybrought 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'sand the legal system'sdominant 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 waysimply 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 institutionssuch as an alumni preference at private collegesstrengthen 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 constructionsomething we choose to believe in the face of scientific evidence to the contrarywhat 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.

Differential racialization.

A recently developed theme within critical race theory discourse is differential racialization. This theory holds that the various racial groups in the United Statesblacks, Latinos, Asian-Americans, and Native Americans, for examplehave been racialized in different ways in response to different needs of the majority group. Moreover, the laws and legal structures society devises for each groupsuch as English-only laws for Latinos, alien land laws for Asians, and Jim Crow laws for blacksoperate 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 conceptsand lawsrelated 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 stereotypesthe super-achiever or humorless drone who steals jobs from more well-balanced American workers, while Latinos may suffer because of the opposite stereotypethe 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 womana 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 intersectionalaimed 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 memberssay, white lesbians, or black single mothersare 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 discourseand perhaps discourse of any kindwill 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.

Hate speech.

Along with the above-mentioned emphasis on language, discourse, and narrative comes a focus on an especially problematic form of expressionhate 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.

Spin-Off Movements

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 issuessuch as immigration law and policy, language and accent discrimination, and discrimination based on conquest or territorial statusto 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 theoryincluding social constructionism, historical revisionism, and close attention to myth and narrativeto whites. Scholars such as Ian Haney-López examine Supreme Court cases dealing with the legal definition of whiteness and the requirementwhich endured until recentlythat 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.

Criticism

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 itselfwhether 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 advanceda story in which the Simpson prosecution was infected at every stage with racial prejudiceCochrane was simply using applied critical race theory. This strategy"playing the race card," in Rosen's viewamounted to a dangerous departure from what should have been the main objective of a trial: finding the truth.

Methodology

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 groupsin Matsuda's memorable phrase, "looking to the bottom." And a significant faction places primary importance on material factorslabor demand, immigration needs, conquest, international tensionsin 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.

Derrick Bell

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 movementcritical legal studiesthat 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 determinacythat every legal problem has exactly one correct solutionand 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 controversialbut, 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 .

bibliography

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.

Richard Delgado

Jean Stefancic

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Critical Race Theory

Critical Race Theory

BIBLIOGRAPHY

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. Bells 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 Bells decision to leave Harvard over the law schools unwillingness to tenure a woman of color. The Alternative Course was a course on civil rights, race and law designed to continue Bells 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 schools 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 nations 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 Presss 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 Tates 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

BIBLIOGRAPHY

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): 4768.

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.

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Critical Race Theory

Critical Race Theory


The critical race theory (CRT) movement developed in the mid-1970s as lawyers, law students, and legal scholars who were sympathetic to the social justice movements of the 1960s witnessed a backlash against the advances of the previous decade. Critical race theory intended to address the most insidious forms of racism and unearth the multiple sources of racial inequality through a critical examination of laws, social practices, and institutions.

Critical race theorists seek to challenge racial inequality by questioning the underlying biases present in the practices and norms of American law, specifically liberalism, integrationism, rationalism, and the notion of an objective Constitution. Although the movement began with law professors and students, it is interdisciplinary. It uses theories and methods of economics, history, sociology, pedagogy, literature, narrative theory, and cultural studies. It has drawn scholars from a range of disciplines, although it remains centered in law and legal academia.

Critical race theory scholars write on an array of subject matters, from very specific case or doctrine analyses to theoretically broad examinations of race in society. However, some principles are consistent across the field. Critical race theorists reject the idea that integration necessarily means equality. They believe in interrogating what are often considered to be objective norms, such as "merit" or "color blindness," to see if they entail racial bias, and they believe in working against the subordination of people of color by placing at the fore perspectives and experiences that are often submerged.

Critical race theory found its intellectual origins in the crossroads of several movements: critical legal studies, a scholarly movement in which the law was considered to be an instrument for maintaining the status quo rather than a set of abstract rational principles; the civil rights and Black Power movements, with their interests in redress, self-determination, and socially engaged thought; and radical feminism, with its observations about the relationship between power and social roles. While it is often suggested that CRT was self-consciously born out of student movements at Harvard Law School, the movement appears to have coalesced from multiple origins and diverse actors with shared concerns. Seminal scholars in the critical race theory movement include Derrick Bell and Alan Freeman (who together made up the first generation of CRT scholars), Patricia Williams, Charles Laurence, Neil Gotanda, Robert Williams, Mari Matsuda, Kimberle Crenshaw, Angela Harris, Francisco Valdes, Margaret Montoya, Richard Delgado, and Jean Stefanic.

CRT has been criticized by detractors from several angles. Some have said that the personal narratives of law professors of color have figured too centrally in the work, while empirical data has been minimal. Others have said that CRT critiques structures of inequality but provides few answers on to how to address them, and still others have challenged it for venturing too far afield of traditional legal writing, even as the work is still principally found in law reviews that are not widely accessible.

CRT scholarship is extremely diverse. While some authors have innovatively used narrative, including personal narrative or fiction, as an argumentative technique, others have used traditional social science methodologies. And while CRT principally provides a critical lens through which to interpret social realities, a great deal of CRT scholarship also makes arguments about how certain legal doctrines should be interpreted or changed. Such arguments have been used in courts as well as in other fields of scholarly inquiry and by activists.

The first CRT conference was held in Madison, Wisconsin, in 1989. Since then dozens of meetings, conferences, and retreats have been held with CRT as a focus. A number of CRT scholars, including Derrick Bell and Patricia J. Williams, have become public figures who have impacted the national conversation about race, and many critical race theorists work in their local communities as practicing attorneys or grassroots activists. Critical race theory has become a subject for many university courses, in which students are encouraged to examine race critically using a wide range of materials.

In addition to finding its origins in several movements, CRT has also led to the development of other movements. Although historically CRT was principally concerned with African Americans, in the 1990s new voices began to emerge in CRT, giving birth to LatCRIT, a Latino-focused critical race theory, and Asian American Jurisprudence, as well as a convergence of queer theory and CRT. Additionally, critical race feminism has emerged, in which the specific gendered experience of women of color is centralized as a subject of concern. In recent years, CRT scholars have increasingly been looking to how race operates internationally, and specifically toward how to address global structures of racial inequality.

See also Black Studies; Civil Rights Movement, U.S.; Critical Mixed-Race Studies

Bibliography

Bell, Derrick. Faces at the Bottom of the Well: The Permanence of Racism. New York: Basic Books, 1993.

Bell, Derrick. Afrolantica Legacies. Chicago: Third World Press, 1997.

Brown, Dorothy. Critical Race Theory: Cases, Materials, and Problems. St. Paul, Minn.: West Group, 2003.

Crenshaw, Kimberle, Neil Gotanda, Gary Peller, and Kendall Thomas, eds. Critical Race Theory: The Key Writings that Formed the Movement. New York: New Press, 1996.

Delgado, Richard, and Jean Stefanic, eds. Critical Race Theory: The Cutting Edge, 2d ed. Philadelphia: Temple University Press, 1999.

Delgado, Richard, and Jean Stefanic, eds. Critical Race Theory: An Introduction. New York: New York University Press, 2001.

Valdez, Francisco, Jerome McCristal Culp, and Angela Harris, eds. Crossroads, Directions and a New Critical Race Theory. Philadelphia: Temple University Press, 2002.

Williams, Patricia J. The Alchemy of Race and Rights. Cambridge, Mass.: Harvard University Press, 1991.

Williams, Patricia J. Seeing a Color-Blind Future: The Paradox of Race. New York: Farrar, Straus and Giroux, 1997.

Wing, Adrien Katherine, ed. Global Critical Race Feminism: An International Reader. New York: New York University Press, 2000.

Wing, Adrien Katherine, ed. Critical Race Feminism: A Reader. New York: New York University Press, 2003.

imani perry (2005)

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Critical Race Theory

Critical Race Theory

SCHOLARSHIP IN THE FIELD

CONTRIBUTIONS OF CRT

BIBLIOGRAPHY

Critical race theory (CRT) is a scholarly and politically committed movement that takes as its starting point the centrality of race in American history and social life. CRT scholars focus on contemporary economic and political arrangements as well as the historic distribution of public and private resources. CRT began as an attempt to identify the ways in which race had either been ignored or minimized in the study of law and legal institutions, and to point out the consequences of that ignorance.

Fundamental to the scholarly inquiries that animate CRT is the idea that race is a socially constructed category that is deeply implicated in the use and circulation of power in society. Thus its two principal objects of analysis are race and power. CRT represents a body of work created primarily, but not exclusively, by legal scholars of color. It has generated related inquiries in the social sciences and humanities, especially history, sociology, anthropology, and education. Because it takes reflective engagement as a fundamental feature of its methodology, CRT sees the knowledge generated by community-based practices as an essential source for the questions that scholars need to ask. Methodologically, this has produced a narrative form of scholarship that uses “storytelling” as a concrete expression of the commitment to reflective engagement. The importance of storytelling is located in its narrative methodology for construing reality, making sense of that reality, and then translating that meaning, through the use of stories to invoke the voices of an excluded community.

SCHOLARSHIP IN THE FIELD

Composing the canon of essential works in critical race theory is difficult because of the heterogeneous nature of the scholars working in the field. Nonetheless, several important early works stand out. Robert M. Cover, in Justice Accused: Antislavery and the Judicial Process (1975), A. Leon Higginbotham Jr., In the Matter of Color: Race and The American Legal Process (1978), Derrick Bell, in “Serving Two Masters” (1976), and Alan D. Freeman, in “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” (1978), produced some of the works that presaged the blossoming of the CRT critique. Two things bind these works together and to the scholarship that has followed. The first is the shift in perspective that locates the scholarly inquiry as an effort to understand the impact of law from the viewpoint of the objects of the law. The second important link is an analysis that recognizes the contingent nature of many conventional legal assumptions. These early works challenge many of those things that are taken as given, raising questions about the political meaning and consequences of the doctrinal structure of the law. Finally, these early works, among others, began to sketch out the structural nature of racial exclusion. This is a focus that has continued to animate CRT scholarship.

These practical and intellectual commitments produced a critique of liberal pluralism (the theory that begins from the premise that politics is properly understood as the aggregation of individual preferences or interests) that grew out of the more general critique of liberal legalism. (Liberal legalism is premised on the idea that all fundamental social problems are capable of being understood and resolved by access to the courts through reliance on individual rights.) The critique of rights is most commonly associated with Professor Duncan Kennedy and the critical legal studies (CLS) movement that had its home at the Harvard Law School. Although CLS challenged the neutrality of legal principles, it failed to confront the interaction of race and law; nor did it acknowledge the symbolic power of legal rights to energize and sustain social movements, especially the civil rights movement of the mid-twentieth century. These gaps in the CLS scholarship helped crystallize the CRT critique.

In contrast to the dominant idea that racial discrimination is an individual problem and the product of bad people, CRT took the position that racism is both an individual problem in its concrete expression (that is, a problem for the object of racism) and a social problem in its generation. Whereas there may be individual ill will, the effects of racism embedded in American history can continue to produce racist effects with no individual ill will at all. This methodological stance led to an inquiry into the ways in which law and its institutions have continued to obscure rather than highlight the systemic effects of the system of racial management that characterized the civil rights jurisprudence in the early days of the civil rights movement (usually understood as the era of Martin Luther King Jr. culminating in the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965). Once the cases involving southern systems of racial subordination worked their way through the courts and through legislation, the legal, economic, and political elite of the day assumed that most of the heavy lifting was over. Yet because the transformation of legally acceptable race-related conduct and institutional practices was crucial for the alteration of acceptable social behavior, the ideology of individual-rights-based liberal reform was insufficient.

Early CRT scholarship hailed the liberal commitment to rights, noting the inspirational power and civic significance of “civil rights” for those who struggled just to belong. But CRT soon saw the mainstream civil rights jurisprudence largely as a technique to manage racial unrest and to tame the goals and the practices of the civil rights movement. Especially threatening to legal liberals was the idea that group interests, and thus group conflict, were at stake. As CRT matured, its practitioners began to see law being used to take the politics out of the struggle for racial justice. By restricting the claims of subordinate groups to “interests,” political engagement was limited to the expression of justice through the protection of group rights as outlined by the courts. But the legal system reduced rights claims to individual claims (sometime aggregated, but at root an individual grievance) predicated on the intentional bad deeds of identifiable individual people. The law demanded formal neutrality as to interests. One response, the cultural nationalism that emerged toward the end of the resurgent mass civil rights movement, was an attempt to construct an oppositional cultural foundation that would facilitate the assertion of claims by those whose interests were first given voice within the legal context of “civil rights.”

CONTRIBUTIONS OF CRT

Building on these elements, critical race theorists focused on the role of law in changing the meaning of social action. This transformation was viewed as central to the project of material transformation and, perhaps more importantly, to the possibility of imagining the social innovation that would be necessary to finally confront the ways in which race continues to affect the way American social institutions function and how that stunts the life chances of people of color. The focus on both law and culture was in the service of understanding the ways that power was expressed in support of the existing distribution of social and material goods. Thus, while CRT was engaged in a thoroughgoing critique of legal doctrine, it was also engaged in a critique of the ways in which the ideology contained in that doctrine was expressed through social life.

Another important contribution was CRT’s engagement with feminism. By adopting a consciousness-raising methodology and reflective practice from the feminist movement, CRT integrated storytelling into the process of understanding the community that drives the movement. This commitment to understanding the lived experience of communities of color meant that CRT imagined itself speaking to many audiences. The rootedness of the narrative methodology was not just an analytic technique but also an intellectual expression of a political commitment. Perhaps just as importantly it introduced a critique and sustained debate about the nature and content of essentialism (the idea that there are fixed and irreducible traits that define individual members of a social group) as a limiting factor in social analysis. While CRT had introduced a critique of essentialism in the attack on both nationalism and color blindness, the engagement with feminism was an important moment in the evolution of CRT scholarship and produced the idea of using strategic essentialism as a potentially politically expedient stance. Simultaneously, CRT scholars challenged the essentialism of a feminist discourse that uncritically assumed the category “women” was white and middle class. This critique led to the development within the law of intersectional analysis, an approach most closely associated with the work of Kimberlé Williams Crenshaw. Intersectional analysis is premised on the claim that forms of social oppression do not act independently of one another, but must be understood from the points at which they modify one another. The social effect of these compounded oppressions require a critical rethinking of any particular one. Intersectionality necessarily implies, for example, that sexism is modified and has different expressions depending upon the race, class position, or sexual orientation of the women or men to whom that analysis is applied.

CRT also launched a sustained critique of black/white dichotomy in the understanding of race in modern American life. By incorporating intersectional analysis in its engagement with feminism, CRT went further by suggesting that the crosscutting impact of race required a thick understanding of local expression of racial hierarchies. While the legal doctrine took as its cardinal example the experience of African Americans, Latino and Asian participants in CRT demonstrated the partiality of a black-dominated analysis. Yet, to confront the disaggregating of communities of color as a strategy for weakening the critique of racism, CRT reformulated the division not along a white/nonwhite axis, but along a black/nonblack axis in order to put the political nature of racial categories in stark relief and to suggest the oppositional nature of the CRT project.

The latest and perhaps most vital expression of the CRT project is found in the emergence of LatCrit (Latina/o critical theory). LatCrit is a self-conscious amalgam that has come to be called “outsider jurisprudence” or an outsider theory of law. LatCrit has taken the activist bent of CRT and created a space for critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian-American legal scholarship, and queer theory to engage with one another.

SEE ALSO Color-Blind Racism; Everyday Racism; Institutional Racism; Orientalism; Racial Formations; Scientific Racism, History of.

BIBLIOGRAPHY

Bell, Derrick. 1976. “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation.” Yale Law Journal 85 (4): 470–516.

———. 1987. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic.

———. 1992. Faces at the Bottom of the Well: The Permanence of Racism. New York: Basic.

———. 2004. Race, Racism and American Law, 5th ed. New York: Aspen Publishers.

———. 2004. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford: Oxford University Press.

Cover, Robert M. 1975. Justice Accused: Antislavery and the Judicial Process. New Haven, CT: Yale University Press.

Crenshaw, Kimberlé Williams. 1988. “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law.” Harvard Law Review 101 (7): 1,331–1,387.

———, 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. 1989. “Storytelling for Oppositionists and Others: A Plea for Narrative.” Michigan Law Review 87 (8): 2,411–2,441.

———, and Jean Stefancic, eds. 2000. Critical Race Theory: The Cutting Edge, 2nd ed. Philadelphia: Temple University Press.

Freeman, Alan D. 1978. “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine.” Minnesota Law Review 62 (6): 1,049–1,119.

Gotanda, Neil. 1991. “A Critique of ‘Our Constitution Is Color-Blind.”’ Stanford Law Review 44 (1): 1–68.

Guinier, Lani. 1994. The Tyranny of the Majority: Fundamental Fairness in Representative Democracy. New York: Free Press.

———, and Gerald Torres. 2002. The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy. Cambridge, MA: Harvard University Press.

Guinier, Lani, Michelle Fine, and Jane Balin. 1997. Becoming Gentlemen: Women, Law School, and Institutional Change. Boston: Beacon Press.

Higginbotham, A. Leon, Jr. 1978. In the Matter of Color: Race and the American Legal Process. New York: Oxford University Press.

Lawrence, Charles R., III. 1987. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” Stanford Law Review 39 (2): 317–388.

Matsuda, Mari J. 1989. “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method.” Women’s Right Law Reporter 11 (1): 7–10.

———, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw. 1993. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, CO: Westview Press.

Torres, Gerald, and Kathryn Milun. 1990. “Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case.” Duke Law Journal, 1990 (4): 625–659.

Williams, Patricia J. 1991. Alchemy of Race and Rights. Cambridge, MA: Harvard University Press.

———. 1995. The Rooster’s Egg. Cambridge, MA: Harvard University Press.

Gerald Torres

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Critical Race Theory

CRITICAL RACE THEORY

Critical race theory embraces a movement of leftist scholars, most of them scholars of color situated in law schools, whose work challenges the ways in which race and racial power are constructed and represented in American legal culture and more generally in American society. Although critical race theory scholars differ in object, argument, accent, and emphasis, their work is unified by two common interests. The first is to understand how a regime of white supremacy and its subordination of people of color have been maintained in America, and, in particular, to examine the relationship between that social structure and professed ideals such as "the rule of law " and " equal protection ". The second is a desire not merely to understand the vexed bond between law and racial power but to change it. Critical race theory scholars share an ethical commitment to human liberation—even as they reject conventional notions of what such a conception means, and often disagree among themselves over the specific directions of change.

Critical race theory expresses deep dissatisfaction with traditional mainstream civil rights discourse, which has been shaped in terms that exclude radical or fundamental challenges to status quo institutional practices in American society by treating the exercise of racial power as rare and aberrational rather than as systemic and ingrained. In this view, liberal race reform, by reinforcing the basic myths of American meritocracy, has served to legitimize the very social practices—in employment offices and admission departments—that were originally targeted for reform. Critical race theory scholars have drawn important insights from the critical legal studies movement's critique of the role of law in constituting and rationalizing an unjust social order. In particular they agree with critical legal studies scholars in rejecting a traditional view that distinguishes law from politics, holding that politics is open-ended, subjective, discretionary, and ideological, whereas law is determinate, objective, bounded, and neutral. Critical race theory scholars embrace the critical legal studies critique of this view, but they part company with one strand of critical legal studies scholarship that deploys a certain postmodern critique of racial identity to challenge the coherence of any intellectual project centered on race. Critical race theory scholars have framed this particular critique as an attack against color-consciousness that differs from the recent conservative devotion to "colorblindness" only in its rhetorical politics. For critical race theory scholars, even though race is socially constructed—the idea of biological race is "false"—race is nonetheless real in the sense that there is a material dimension and weight to the experience of being "raced" in American society, a materiality that in significant ways has been produced and sustained by law.

Critical race theory scholarship thus offers a theoretical vocabulary for the practice of progressive racial politics in contemporary America, even as it seeks to expose the irreducibly political character of the rehnquist court majority's hostility toward policies that would take race into account in redressing historical and contemporary patterns of racial discrimination. One arena for deployment of critical race theory is the debate over affirmative action, in which civil rights liberals have seemed unwilling to see the hidden racial dimensions of the meritocratic mythology that their conservative opponents have so deftly used to control the terms of current debate. Critical race theory understands that, claims to the contrary notwithstanding, distributions of power and resources that were racially determined before the advent of affirmative action will continue to produce predictable patterns of racial disempowerment if affirmative action be abandoned. The conceptions of merit employed by opponents of affirmative action function not as a rational basis for distributing resources and opportunity, but rather as a repository of hidden, race-specific preferences for those who have the power to determine the meaning and consequences of "merit." Critical race theory scholars have shown that the putatively neutral baseline from which affirmative action is said to represent a deviation is in fact a mechanism for perpetuating the distribution of rights, privileges, and opportunity established under a regime of uncontested white supremacy. A return to that so-called neutral baseline would mean a return to an unjust system of racial power.

Critical race theory can also bring a useful perspective to the debate over the proliferation of economic, political, and social relations across national borders which has come to be known as globalization. In this perspective, generalized references to "north" and "south" or to "rich" and "poor" nations figure as metaphorical substitutes for serious and sustained attention to the racial and ethnic character of the massive distributive transformations that globalization has set in motion. An indifference to questions of racial ideology and power is seen in liberal and leftist efforts to emphasize questions of class structure in explaining the political significance of global economic processes within the United States. These explanations leave out the current dynamics of racial power, ignoring the racial composition of the communities that have been chosen to bear the sharp edge of economic dislocation. Yet, even a cursory review of current national discourses about issues such as public education, immigration, and welfare reform demonstrates the degree to which questions of race and racial ideology stand at the very center of today's debates. These developments defy explanations in terms of liberal accounts of poverty and social inequality, or leftist formulations about the historical class relations between labor and capital. An inquiry informed by critical race theory would examine the way a certain brand of racial politics has been mobilized to buffer the massive upward distribution of resources and opportunity in the United States, and would explore the way racial ideologies have been used to justify relatively open border policies toward our northern neighbors, even as we close off our borders to those from the south.

Finally, critical race theory scholars seek to contribute to the discussion within communities of color over the future direction of antiracist politics. Powerful voices of racialism have been raised, particularly within the African American community, in which contemporary racial crisis is frequently represented as a reflection of unmediated white power. What racialists too often fail to note is that the same narrow politics of racial solidarity helped to rally African Americans behind the nomination of clarence thomas to the Supreme Court. Justice Thomas has been an active participant in the evisceration of the post–civil rights political coalition. Similarly, the black racialist account proffers a vision of racism that portrays racial power primarily through its impact on African American males. By rendering the particular experiences of black females invisible, this form of racialist politics effectively denies the struggle against racialized gender oppression a place on the antiracist agenda.

Questioning regnant visions of racial meaning and racial power, critical race theorists seek to fashion a set of tools for thinking about race that will avoid the traps of racial thinking. Political interventions that overlook the multiple ways in which people of color are situated and resituated as communities, subcommunities, and individuals will do little to promote effective countermobilization against today's newly empowered right. Critical race theory scholars have sought to prevent this waste of political effort by illuminating the ways in which issues of racial ideology and power continue to matter in American life.

KimberlÉ Crenshaw

Neil Gotanda

Gary Peller

Kendall Thomas
(2000)

Bibliography

Crenshaw, KimberlÉ;G otanda, Neil;P eller, Gary; and Thomas, Kendall, eds. 1995 Critical Race Theory: The Key Writings That Formed the Movement. New York: New Press.

Delgado, Richard, ed. 1995 Critical Race Theory: The Cutting Edge. Philadelphia: Temple Uiversity Press.

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