In our last post we surveyed the “traditional civil rights discourse.” In particular, we saw that racism was not understood to be a natural human dynamic, but rather a very specific and historically conditioned social relation; that “color” itself had little to do with racism and only tangentially to do with its creation; that racism was not understood to be the cause of African slavery and exploitation, but rather the result; that racism, with its accompanying systems and ideas, was manufactured to justify African slavery and group-based exploitation; and last that, according to the tradition, racism is at bottom “the myth of inferior peoples” (Dr. King, p. 75).

In addition, we suggested a few necessary corollaries, viz., that racism was therefore considered inseparable from economics, is part of the very fabric of American life and institutions, is largely about power, and was never simply a matter of individual hatred.

Finally, we noted that though traditional civil rights activists had some important disagreements, they also shared some common goals—initially emancipation, then equal rights, anti-discrimination law, and economic reforms—and employed some common themes, e.g., limited use of color-blindness language in response to formal color-conscious laws, general philosophical and ideological commitment to modernism, and, of course, Christianity itself was a common stream among most traditional abolitionist and civil rights activists, with notable exceptions.

Next, given that the intention of this series is to tell the story of Critical Race Theory (CRT), presenting it in its actual historical context, two discussions seem necessary for this post: first, to accurately capture the opposition discourse to the traditional Civil Rights Movement (the “segregationist discourse”); second, to situate the development of CRT as it actually appeared in the late 1980’s. The goal of this piece, to be clear, is to help understand CRT as an historically motivated set of analyses rather than a system of academic musings born in an existential vacuum.

The Traditional Segregationist Discourse

We might assume, as had I at one time, that Southerners during the 1950’s and 60’s just consciously hated Black Americans because of their skin color and sought at every turn to assure that their bitter “colored” foes would never have any rights in America, let alone equal rights. But upon deeper inspection, it becomes clear that the “traditional segregationist discourse” was more about preserving a specific way of life for White Americans, pitting the interests of Black and brown Americans against their own ideals of freedom, religion, patriotism, and individual rights.

As historian Kevin M. Kruse has successfully argued in his detailed discussion of Southern integration,

If we truly seek to understand segregationists—not to excuse or absolve them, but to understand them—then we must first understand how they understood themselves. … [L]ike all people, they did not think of themselves in terms of what they opposed but rather in terms of what they supported. The conventional wisdom has held that they were only fighting against the rights of others. But, in their own minds, segregationists were instead fighting for rights of their own—such as the “right” to select their neighbors, their employees, and their children’s classmates, the “right” to do as they pleased with their private property and personal businesses, and, perhaps most important, the “right” to remain free from what they saw as dangerous encroachments by the federal government. To be sure, all of these positive “rights” were grounded in a negative system of discrimination and racism. In the minds of segregationists, however, such rights existed all the same. Indeed, from their perspective, it was clearly they who defended individual freedom, while the “so-called civil rights activists” aligned themselves with a powerful central state, demanded increased governmental regulation of local affairs, and waged a sustained assault on the individual economic, social, and political prerogatives of others. The true goal of desegregation, these white southerners insisted, was not to end the system of racial oppression in the South, but to install a new system that oppressed them instead. As this study demonstrates, southern whites fundamentally understood their support of segregation as a defense of their own liberties, rather than a denial of others’. (White Flight, p. 9)

As thousands of Black soldiers returned home from fighting in two world wars, coupled with President Harry Truman’s civil rights reforms, the struggle over neighborhood and school integration became increasingly intensified by the late forties and fifties, ultimately leading to the Brown V. Board of Education decision in 1954, effectively overturning the “separate but equal” doctrine which had reined since Plessy v. Ferguson (1896). Through the many legal challenges to Jim Crow segregation, as well as the public debate throughout Southern society, segregationists developed an ideological battery of both legal and “common sense” appeals to “traditional American” ideals, presumed to be the doctrines of the Founders, but more certainly of their fathers who fought and died in the “War Between the States.”

I’ve always found Alabama Governor George Wallace’s 1963 Inaugural Address particularly instructive. Delivered soon after Dr. King moved his operations from Albany to Birmingham, and just a couple months after the mass White riot following the court ordered enrollment of James Meredith in the University of Mississippi, Wallace’s address is a near perfect summary of the traditional segregationist discourse, captured all in one well-articulated speech.

He begins with a theme, consistent with Kruse’s suggestion above, that marks the speech from beginning to end: the struggle against integration was a struggle for freedom:

Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and again down through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny … and I say … segregation now … segregation tomorrow … segregation forever. (“The INAUGURAL ADDRESS of GOVERNOR GEORGE C. WALLACE,” p. 2)

An easily identifiable list of themes quickly emerges as one listens to the speech, including states’ rights and federalism (the Confederate apologist’s mainstay), free enterprise, freedom of association, the primacy of private property, meritocracy as the goal of the Founders, and the presumption that all opposition is actually communism, tyranny, immorality, and atheism.

We can no longer hide our head in the sand and tell ourselves that the ideology of our free fathers is not being attacked and is not being threatened by another idea … for it is. We are faced with an idea that if a centralized government assumes enough authority, enough power over its people, that it can provide a utopian life … that if given the power to dictate, to forbid, to require, to demand, to distribute, to edict and to judge what is best and enforce that will of judgement upon its citizens from unimpeachable authority … then it will produce only good … and it shall be our father … and our God. … In encouraging our fears of economic insecurity it demands we place that economic management and control with government; in encouraging our fear of educational development it demands we place that education and the minds of our children under management and control of government, and even in feeding our fears of physical infirmities and declining years, it offers and demands to father us through it all and even into the grave. It is a government that claims to us that it is bountiful as it buys its power from us with the fruits of its rapaciousness of the wealth that free men before it have produced and builds on crumbling credit without responsibilities to the debtors … our children. It is an ideology of government erected on the encouragement of fear and fails to recognize the basic law of our fathers that governments do not produce wealth … people produce wealth … free people; and as those people become less free … as they learn there is little reward for ambition … that it requires faith to risk … and they have none … as the government must restrict and penalize and tax incentive and endeavor and must increase its expenditures of bounties … . (pp. 4-5)

… We intend, quite simply, to practice the free heritage as bequeathed to us as sons of free fathers. We intend to revitalize the truly new and progressive form of government that is less than two hundred years old … a government first founded in this nation simply and purely on faith … that there is a personal God who rewards good and punishes evil … that hard work will receive its just desserts … that ambition and ingenuity and inventiveness … and profit of such … are admirable traits and goals … that the individual is encouraged in his spiritual growth and from that growth arrives at a character that enhances his charity toward others and from that character and that charity so is influenced business, and labor and farmer and government.

… This nation was never meant to be a unit of one … but a united of the many … that is the exact reason our freedom loving forefathers established the states, so as to divide the rights and powers among the many states, insuring that no central power could gain master government control. (pp. 7-8)

… And so it was meant in our racial lives … each race, within its own framework has the freedom to teach … to instruct … to develop … to ask for and receive deserved help from others of separate racial stations. This is the great freedom of our American founding fathers … but if we amalgamate into the one unit as advocated by the communist philosophers … then the enrichment of our lives … the freedom for our development … is gone forever. We become, therefore, a mongrel unit of one under a single all powerful government … and we stand for everything … and for nothing.

… We invite the negro citizens of Alabama to work with us from his separate racial station .. as we will work with him … to develop, to grow in individual freedom and enrichment. We want jobs and a good future for BOTH our races. We want to help the physically and mentally sick of BOTH races … the tubercular and the infirm. This is the basic heritage of my religion, of which I make full practice …. for we are all the handiwork of God.
But we warn those, of any group, who would follow the false doctrine of communistic amalgamation that we will not surrender our system of government … our freedom of race and religion … that freedom was won at a hard price and if it requires a hard price to keep it … we are able and quite willing to pay it. (p. 9)

… I have been taught that freedom meant freedom from any threat or fear of government. I was born in that freedom, I was raised in that freedom … I intend to live in that freedom … and God willing, when I die, I shall leave that freedom to my children … as my father left it to me. (p. 11)
It is quite easy to see how these ideas grew out of and/or were solidified by the regional battles fought against integration throughout the South. The Federal government was quite clearly interfering, radically free enterprise would indeed have jettisoned the very concept of illicit discrimination, parents could appeal to freedom of association to fight school integration, same for church and club, etc. Further, when the pool or the golf course was integrated, you simply shut them down and create private pools and golf courses. Whole Southern societies abandoned the notion of public goods in favor of privatization for this very reason, a movement that subsequently swept the nation. States even sought to privatize their school systems rather than integrate, and many counties did just that—hence, the explosion of private schools during the period. And there was simply no greater rhetorical power in America than crying “communism!” or declaring your political opponent to be at odds with God Himself.

Last, as can be seen in the quotes above, segregationists did not consider themselves racists; they loved the “Negro” and wished the best for him—again, according to their own self-assessment. As Wallace stated in a 1968 Meet the Press interview, “Well, of course I don’t know what your definition of racism is. But I’m certainly not a racist.”

The real racists were the “colored” peoples of the world seeking to tyrannize the White minority and rob him of his God given rights:

… As the national racism of Hitler’s Germany persecuted a national minority to the whim of a national majority … so the international racism of the liberals seek to persecute the international white minority to the whim of the international colored majority … so that we are footballed about according to the favor of the Afro-Asian bloc. But the Belgian survivors of the Congo cannot present their case to a war crimes commission … nor the Portuguese of Angola … nor the survivors of Castro … nor the citizens of Oxford, Mississippi. (Inaugural Address, p. 6)

These principles, inherited from the Confederacy and refined in the fires of “forced” integration, have proven to be potent political ideals. Simply remove explicit references to “segregation” and much of this ideology predominates to this very day. In his 1964 presidential bid, Barry Goldwater won every Deep South state by running on these very principles—as a Republican. Richard Nixon took these principles national in his own 1968 presidential victory, though losing the Deep South to Governor Wallace (running third party) alone. But by 1972, Nixon had secured the whole of the South with this rhetoric, in his second term victory.

“I wish I had copyrighted my speeches,” Wallace complained in 1969. “I would be drawing immense royalties from Mr. Nixon and especially Mr. Agnew.” (White Flight, p. 253)

Civil Rights and the Prospect of Substantive Reform

But, hadn’t the Civil Rights discourse won the day by 1972? It is true that through the tireless work of litigators in the courts and activists in the streets, Jim Crow was legally dismantled throughout the South, the “Whites Only” signs had mostly come down, schools had begun integration at the courts’ behest in 1959 (Brown II), discrimination in all public services and accommodations had been outlawed by the Civil Rights Act of 1964, voting rights had been restored by the Voting Rights Act of 1965, and housing discrimination was addressed in the Civil Rights Act of 1968.

In nearly every legal case, the equal protection clause of the 14th Amendment was the stated basis of change, coupled at times with the ideological appeal of Justice John Marshall Harlan’s lone dissent to the Court’s Plessy v. Ferguson decision in 1896, including,

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

These two ideas, equal protection under the law and the supposed color-blindness of the constitution, became the ideological basis for formal equality—or, as critics might understand it, process equity.

While formal equity and a limited understanding of legal color-blindness were unquestionably, given the historical context, important and tangible victories for disenfranchised Americans, what was even more promising at the end of the 1960’s and the beginning of the 1970’s were the often stated commitments to seeking substantive equality, after centuries of government sponsored disenfranchisement. As many scholars have noted, for example, neither mere process equity nor color-blindness were enough to overturn Plessy v. Ferguson’s “separate but equal” doctrine, as was done in the Brown v. Board decision; rather, justices ruled on the understanding that segregation caused actual harm to African Americans.

In 1961, President John F. Kennedy issued and Executive Order requiring federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin” (E.O. 10925) and Lyndon Johnson expanded this order in 1965 (E.O. 11246). Major universities throughout the nation also instituted affirmative action policies, all of which were, more or less, upheld by the courts for nearly two decades.

Further, Congress argued that the purpose of the Title VII provisions in the 1964 Civil Rights Act was “to make the victims of unlawful discrimination whole” and,

requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination. (118 cong. rec. 7168)

A principle which, if applied consistently, would demand change not only of the formal subordination of African Americans, but a substantial change in their subordinated circumstances. The Supreme Court confirmed this substantive intent in Griggs v. Duke Power Co., concluding that “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”

The same is true of the Voting Rights Act of 1965 (and accompanying legal cases) which outlawed poll taxes, literacy tests, and grandfather clauses, all of which effectively disenfranchised African Americans without even mentioning color or race, thus clearly exhibiting the legislators and jurists intentions to substantially re-enfranchise African American voters, not just seek a “neutral” standard. (See also the SCOTUS decisions in Swann v. Charlotte-Mecklenberg Board of Education, Wright v. Council of City of Emporia, and Keys v. School District no. 1.)

And Lyndon B. Johnson appeared to agree with these early substantive goals in his 1965 Howard University commencement speech:

[F]reedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result. (“To Fulfill These Rights”)

Last, as momentum seemed to trend toward a national commitment to substantive equality, one of the most powerful analysis of American racism proved to be a point of divergence in both public policy and public perceptions. In 1967 Johnson appointed a commission to investigate the many violent riots which had been erupting throughout the United States over the previous few years. The stated purpose of the report was to answer, “What happened? Why did it happen? What can be done to prevent it from happening again and again?” The Kerner Commission (properly, The National Advisory Commission on Civil Disorders) published its report seven months later, following careful sociological research and review of all available data. The nine White and two Black investigators concluded unequivocally that White racism and White Supremacy were the cause of the unrest throughout Black America.

What white Americans have never fully understood but what the Negro can never forget — is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it. … Our nation is moving toward two societies, one black, one white—separate and unequal. … The press has too long basked in a white world looking out of it, if at all, with white men’s eyes and white perspective. (Report of the National Advisory Committee on Civil Disorders, pp. 1, 2, 389)

The commission faulted White America for the creation of ghettos, for de facto segregation throughout the nation, for poor housing and lack of jobs, all of which had resulted in predictable unrest. The Commission suggested a massive response to rearrange the conditions of African Americans throughout the nation.

To pursue our present course will involve the continuing polarization of the American community and, ultimately, the destruction of basic democratic values. The alternative is not blind repression or capitulation to lawlessness. It is the realization of common opportunities for all within a single society. (p. 1)

… Unless there are sharp changes in the factors influencing Negro settlement patterns within metropolitan areas, there is little doubt that the trend toward Negro majorities will continue. … Providing employment for the swelling Negro ghetto population will require …opening suburban residential areas to Negroes and encouraging them to move closer to industrial centers. … [W]e believe that the emphasis of the program should be changed from traditional publicly built slum based high rise projects to smaller units on scattered sites. (pp. 392, 289, 474)

Richard Nixon openly condemned the report, claiming it blamed the victims of “Negro” violence rather than the “Negro” perpetrators. Dr. King, on the other hand, called it “a physician’s warning of approaching death, with a prescription for life” (UC Berkeley, 1967). Unfortunately, Johnson dismissed the report as overplaying the responsibility of White racism and expressed to Bobby Kennedy that he simply did not have the public will to spend the billions of dollars necessary, especially amidst the Vietnam War, and had hoped the Commission would have lauded his Great Society spending and reforms as remedies, though they had not.

Civil Rights Retrenchment

In many ways, the seeds of retrenchment had already been sown by the end of Lyndon B. Johnson’s second term in office. Though I would like to say that the lines quoted above from his Howard commencement speech stood alone, nevertheless they were coupled with an emergent and competing theme popularized by the Moynihan Report of 1965 (published as, The Negro Family: The Case For National Action).

Perhaps most important—its influence radiating to every part of life—is the breakdown of the Negro family structure. For this, most of all, white America must accept responsibility. It flows from centuries of oppression and persecution of the Negro man. It flows from the long years of degradation and discrimination, which have attacked his dignity and assaulted his ability to produce for his family. (“To Fulfill These Rights”)

What was quite probably presented in good faith by Daniel Patrick Moynihan became the “tangle of pathologies” or cultural inferiority explanation of African American suffering. Dr. King recognized in 1968 that this sociological look into the difficulties faced by Black families, subjected as they were to centuries of oppression, could go either way, depending on the intentions of the observer:

As public awareness of the predicament of the Negro family increases, there will be danger and opportunity. The opportunity will be to deal fully rather than haphazardly with the problem as a whole—to see it as a social catastrophe brought on by long years of brutality and oppression and to meet it as other disasters are met, with an adequacy of resources. The danger will be that the problems will be attributed to innate Negro weaknesses and used to justify further neglect and to rationalize continued oppression. (Where Do We Go From Here?, p. 116)

More often than not, unfortunately, the Moynihan Report has been leveraged to support the latter conclusion.

Further, while the Kerner Commission had argued that,

The police are not merely a spark factor. To some Negroes police have come to symbolize white power, white racism, and white repression. And the fact is that many police do reflect and express these white attitudes. (p. 11)

Johnson nevertheless ultimately focused on policing rather than continued pursuit of substantive equality. The Law Enforcement Assistance Act had already been ratified in 1965, beginning the Federal government’s increasing interest in local “law and order” rather than continued interest in, for example, the primary recommendation of the Kerner Commission, viz., “a policy which combines ghetto enrichment with programs designed to encourage integration of substantial numbers of Negroes into the society outside the ghetto” (p. 405).

Then, again, in the 1968 presidential campaign, Richard Nixon not only poached the rhetoric of George Wallace, but brought this emerging “law and order” message to the fore of American politics.

The strategy was right on time. In a 1968 Gallup poll, 81 percent of respondents said they believed Nixon’s campaign slogan: “Law and order has broken down in the country.” A Nixon television advertisement shrieked frightening music and frightening images of violent and bloodied activists. A deep voiceover says, “I pledge to you, we shall have order in the United States.” The ad “hit it right on the nose. It’s all about those damn Negro–Puerto Rican groups out there,” Nixon reportedly said in private. In public, the tune was the same, save the racial lyrics. On September 6, 1968, before 30,000 applauding Texans, Nixon slammed the Supreme Court for having “gone too far in strengthening the criminal forces.” Thirty years before, Theodore Bilbo would have said strengthening “the n[****]r forces.” (Stamped From The Beginning, Loc. 6495)

(For some early SCOTUS retrenchment in the Nixon era, see Milliken v. Bradley, Pasadena City Board of Education v. Spangler, and Washington v. Davis.)

Finally, we come to the eight-year administration of President Ronald Reagan (1981-1989)—the very era in which Critical Race Theory was born. Reagan’s “new conservative” movement hearkened directly back to the campaign of Barry Goldwater, taking Nixon’s conservatism to the next level. Not only did Reagan champion the law and order movement beyond any that had gone before, but he perfected the rhetoric of Southern segregationists like George Wallace. (I’d argue that, with only a handful of deletions, Wallace’s entire Inaugural Address could have been delivered by Ronald Reagan, and quite probably was delivered multiple times in aggregate over the course of his political career.) Every theme discussed above—states’ rights, federalism, radically free enterprise, freedom of association, increased privatization, the mythic view of American meritocracy, and opposition to public assistance, all couched in the polemics of anti-communism and civil religion—were the bases of his fabulously successful 1980 and 1984 campaigns. And, for the most part, these themes were successfully cast in the “race neutral” language of “equal protection under the law” and “color-blindness,” solidifying a new post-civil rights era compromise, viz., the commitment to an idealized formal equality absent the goal of substantive equality.

According to Dr. Kimberlé Crenshaw, early founder and leading CRT theorist,

The Reagan Administration arrived in Washington in 1981 with an agenda that was profoundly hostile to the civil rights policies of the previous two decades. … A number of early episodes sent a clear message that the Reagan Administration would be inhospitable to the civil rights policies adopted by earlier administrations. For example, the Civil Rights Division of the Justice Department, under Deputy Attorney General William Bradford Reynolds, abruptly changed sides in several cases. Other serious attacks on the civil rights constituency included Reagan’s attempt to fire members of the United States Commission on Civil Rights, the Administration’s opposition to the 1982 amendment of the Voting Rights Act, and Reagan’s veto of the Civil Rights Restoration Act.

She gives as further examples,

The most notorious was Bob Jones University v. United States, 461 U.S. 574 (1983), in which the Reagan Administration refused to argue a case, initiated by the Justice Department during the previous Administration, that sought to maintain the Internal Revenue Service policy of denying tax-exempt status to schools that discriminated on the basis of race. … In Washington v. Seattle School District No. I, 458 U.S. 457, 471-72 (1982), the Justice Department switched sides to support the constitutionality of an anti-busing initiative. In Plyler v. Doe, 457 U.S. 202 (1982), the Carter Administration had filed a brief as amicus curiae in a suit alleging that Texas had unconstitutionally denied public education to the children of undocumented workers. Although the government had argued this position successfully in the Fifth Circuit, the Reagan Justice Department refused to express any view on the constitutionality of Texas’ policy, which the Court subsequently invalidated. (“Race, Reform, and Retrenchment,” pp. 1337-1339)

The Reagan administration ultimately sought to invalidate affirmative action policies, curb social services to disenfranchised Americans, cut Federal funding to struggling cities and schools (the “New Federalism”), halt the continued push for neighborhood and school integration, and opted for increased incarceration and militarized policing to address the concerns of the Kerner Commission.

And the legal philosophy of the new conservatism became abundantly clear with Reagan’s nomination of Robert Bork to the Supreme Court, leading to a Senate confirmation battle that is still considered a biting injustice and unwarranted attack among conservative talk radio hosts. While the legal philosophy of “Originalism” was not entirely absent in traditional liberal thinking, and was always understood to be a component of legal interpretation, even fellow conservatives like Justice William T. Coleman found Bork’s Originalist ideology consistent with the traditional segregationist discourse discussed above:

[T]hough Judge Bork repeatedly insists that aggrieved individuals and groups should seek redress through the legislative process rather than the courts, when Congress has legislated to promote black equality Judge Bork has frequently argued that Congress’s efforts are unconstitutional or interfere with whites’ ”liberty” to discriminate.

Thus, he has questioned the constitutionality of the public accommodations provisions of the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1970 amendments to the Voting Rights Act. The pattern is unmistakable. When it has counted, Robert Bork has often stood against the aspirations of blacks to achieve their constitutional rights and to remove the vestiges of racial discrimination. (New York Times, “Why Judge Bork is Unacceptable”)

Last, in 1987, leading civil rights lawyer and then first Black Supreme Court Justice, Thurgood Marshall, was asked by columnist Carl T. Rowan to “rate some of the Presidents and their impact on racial justice in his lifetime,” specifically, “”What about Ronald Reagan?”; Marshall’s response was devastating:

Justice Marshall: ”The bottom.”

Mr. Rowan: ”The bottom?”

Justice Marshall: ”Honestly. I think he’s down with Hoover and that group. Wilson. When we really didn’t have a chance.”

Mr. Rowan: ”Yet he’s been one of the most popular Presidents the country ever had in the polls.”

Justice Marshall: ”Is he more popular than the average movie star?” (New York Times, “Marshall Puts Reagan at ‘Bottom’ Among Presidents on Civil Rights”)

Conclusion: The Historical Milieu of CRT

By 1988—just twenty years following the assassination of Dr. Martin Luther King, Jr.—the substantive strides initiated by Brown v. Board of Education had been largely halted, possibly even moving in the wrong direction. At the very time that the ideology of CRT was being hammered out in law schools throughout the nation, Dr. Crenshaw was sadly able to report that,

Continuing disparities exist between African-Americans and whites in virtually every measurable category. In 1986, the African-American poverty rate stood at 31%, compared with 11% for whites. … “[B]lack median income is 57 percent that of whites, a decline of about four percentage points since the early 1970’s.” … Between 1981 and 1985, Black unemployment averaged 17%, compared to 7.3% for whites. … In 1986, approximately 44% of all Black children lived in poverty. … Blacks comprise sixty percent of the urban underclass in the United States.

The African-American socioeconomic position in American society has actually declined in the last two decades. Average annual family income for African-Americans dropped 9% from the 1970’s to the 1980’s. … Since 1969, the proportion of Black men between 25 and 55 earning less than $5000 a year rose from 8% to 20%. … African-American enrollment in universities and colleges is also on the decline.

The decline in the African-American socioeconomic position has been paralleled by an increase in overt racial hostility. … In addition to well publicized incidents of racial violence like the Howard Beach attack, … and the lynching of Michael Donald, … racial unrest has risen dramatically on university campuses. (“Race, Reform, and Retrenchment,” pp. 1332-1333)

So, what happened? How, within the space of just twenty years, was the Civil Rights revolution so successfully stymied in making lasting substantive changes to the circumstances of African Americans? The signs had come down, formal equality had been legally established, massive victories were won for civil rights throughout the nation at every level of government, yet the historically expected and inevitable social and economic disparities suffered by African Americans seemed obstinate, even entrenched. Even the more boring and quiet ongoing court battles over neighborhood and school segregation, premised upon Brown v. Board decision, were more and more ending in defeat, leaving neighborhoods and schools as, or more, segregated than in the 1960’s. And we can’t just point to presidents and national policies, for these only existed due to some landslide victories at the polls. Again, how did the traditional segregationist discourse, trimmed of a few unacceptable phrases, become the dominant discourse in American society by the 1980’s?

It is precisely these questions, this history, this conflict of discourses, and these historical existential circumstances that caused a minority of legal theorists, from universities throughout America, to dig deeper into the foundations and framework of American systems and ideologies, seeking to locate the underpinnings of this historically recurring racial retrenchment. This is why, in Angela Harris’s words,

Critical Race Theory is at bottom properly “critical,” which in this sense means also to be “radical”—to locate problems not at the surface of doctrine but in the deep structure of American law and culture. (“The Jurisprudence of Reconstruction”)

In our next post, we will examine three specific essays leading up to the July 8, 1989 meeting of scholars considered to be the formal birth of an emerging critical theory of race.

Some Questions
1. As before, would you say that this was the segregationists’ discourse you learned in school, or from family, friends, or church? If not, why do you think you were taught an alternate version?
2. What explanation, if asked, would you give for the substantial disparities in racial circumstances that continue to exist in our own day?
3. Though I spent quite a bit of time on Ronald Reagan, given that his presidency was the era in which CRT was born, the truth is this retrenchment was also largely true of the Clinton administration and maybe even the Obama administration, though to a much lesser degree. Why do you think this segregationist discourse has been so appealing, even across political boundaries?
4. Had we not had a particular goal in telling this historical narrative, I would have also addressed the Church’s participation in the segregationist discourse, how religion was used to legitimate racism as “not racist,” and how popular ministers became public champions of, e.g., states’ rights rhetoric, free enterprise, and process equity. In what ways do you see the Church as historically participating in both the opposition to integration and the later racial retrenchment?
5. Agree or disagree with the work of early Critical Race Theorists, can you nevertheless understand the historical and circumstantial motivation for moving beyond the common analysis of the historic Civil Rights Movement and questioning some more basic social, legal, and political assumptions and ideologies?
6. Consider your own political and economic ideas. Do you know where they came from, their historical provenance? Are they Biblical? Do they affect Americans differently depending on race or ethnicity?

Further Reading for Part 2
The INAUGURAL ADDRESS of GOVERNOR GEORGE C. WALLACE,” delivered by George Wallace [text] “The INAUGURAL ADDRESS of GOVERNOR GEORGE C. WALLACE,” delivered by George Wallace

Letter From Birmingham Jail,” by Dr. Martin Luther King, Jr.
To Fulfill These Rights,” delivered by Lyndon B. Johnson
Marshall Puts Reagan at ‘Bottom’ Among Presidents on Civil Rights,” New York Times
Where Do We Go From Here?, by Dr. Martin Luther King, Jr.


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Bradly Mason

Bradly Mason

Bradly Mason is a husband, father of four, member of a historically Reformed church, and a cabinet maker by trade. Brad blogs occasionally at and can also be followed on Twitter, @AlsoACarpenter.

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